The loss of a loved one can cause great emotional and financial strain on a family member especially if the loss was caused by another person’s misconduct or negligent actions.  In these types of situations, a family member or next of kin has the ability to recover damages caused by the wrongful death of the deceased person.  Family members have two options to recover damages from the at-fault party.  A claim can be brought under either the Illinois Wrongful Death Act (740 ILCS 180) or the Illinois Survival Statute (755 ILCS 5/27-6).  The two statutes function differently with regard to what damages can be recovered and the mechanism for seeking recovery.

The Illinois Wrongful Death Act creates a cause of action for the deceased person’s next of kin.  The next of kin can sue the at-fault party seeking to recover damages they suffered and need in order to move forward with their lives.  A jury will award damages that they deem are fair and just based on the injury suffered.  Typically, damages for grief, sorrow, mental suffering, loss of companionship and society are sought by the next of kin.  Additionally, the next of kin can request damages in an amount equal to the deceased person’s contribution to the income of the household.

Conversely, the Illinois Survival Statute does not create a new cause of action but rather preserves for the representative of the decedent causes of action that existed prior to the death of the decedent.  Thus, in order to recover under the Illinois Survival Statute, an estate needs to be opened on behalf of the decedent.  The Illinois Survival Statute is typically used on behalf of a person who died before they could sue for their injury.  Examples of causes of action that survive under the statute include legal and medical malpractice claims, wrongful death actions and claims for injury to personal property including actions for loss of consortium.  The decedent’s estate can recover the same compensatory damages that the decedent was entitled to recover.  A jury may provide damages to the estate for pain and suffering, loss of earnings, medical expenses, physical disability, and property damage.

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