When someone dies due to another person's negligence, there are several ways the surviving loved ones can get paid compensation for their losses. These come in the form of a wrongful death claim, a survival claim, and various types of death benefits. The most common two are survival and wrongful death actions. This brief discussion will highlight the differences between these actions, while explaining why it is so important to carefully consider how and when to use each form of legal action. Perhaps the most important consideration is working with a personal injury attorney near you who has handled lots of these types of cases. Nothing gets the job done like experience.
The Illinois Wrongful Death Act 740 ILCS 180/0.01 et seq.
The Illinois Wrongful Death Act is a law that specifically gives surviving next-of-kin the right to pursue lawsuits against those responsible for claiming the lives of loved ones. These actions technically “belong” to the surviving loved ones, meaning any money recovered is intended solely for the benefit of surviving spouses, children, and other close relatives.
The Illinois Survival Act 755 ILCS 5/27-6
The Survival Act is a law that allows the Estate of a deceased person to collect whatever money would have been payable to the now deceased individual, had he or she survived. So, this type of claim technically “belongs” to the estate of the decedent. This type of claim is generally included as a separate count in a lawsuit, and it can collect and recover compensation for things like:
- Loss of income from death of decedent
- Medical expenses for the decedent
- Conscious pain and suffering of the decedent
Major Differences Between Wrongful Death and Survival Actions
There are four major differences between these two types of legal actions. Keep in mind that these distinctions are derived from the unique nature of each action – one belonging to the heirs and one belonging to the estate.
- Wrongful death claims are not subject to medical liens and creditor claims, whereas survival claims are. This is because survival claims are part of the estate, whereas wrongful death claims are not.
- Medicare generally cannot assert a lien against a wrongful death claim in Illinois, whereas it can do so with a survival claim.
- Statutory Cases, like Nursing Home Abuse/Neglect Cases must be brought under the Survival Act, because the unique benefit of these cases can only be payable to the nursing home resident.
- You must open a probate case in court in order to file a survival lawsuit, but you need not do so if only filing a wrongful death action.
Other Big Reasons to Understand the Differences Between Wrongful Death and Survival Actions in Illinois
Insurance companies often attempt to minimize what they pay to heirs in these cases. The more you understand how the law works, the better you can out-maneuver insurance carriers. For instance, sometimes a decedent dies leaving substantial debts in his wake. If a lawsuit is brought under the Survival Act, then all the money will be subject to massive insurance liens and subrogation interests (offsets that reduce your take-home amount). But if brought under the Wrongful Death Act, much of this can be avoided.
Of course, there are other times when a probate case with a survival claim makes more sense. For instance, if the death is not clearly due to the injuries, but there were substantial injuries during life, then a survival claim may be the best approach.
Perhaps the toughest thing for many people in these situations is dealing with loss. There are a lot of painful emotions surrounding an unexpected death. By the very nature of a wrongful death case, a family has lost someone extremely beloved and important to them with no notice. These are not cases where a person was known to be dying, and the family and loved ones had time to prepare. It is usually sudden, such as in a car accident, medical error, or fatal fall. Loved ones need time to heal. Many sources suggest that it can take several years to fully process grief and deal with a loss. Sadly, the statutes of limitation in Illinois make it important to bring a lawsuit within the right amount of time. In general, most cases in Illinois will have a two-year statute of limitations, but there are a few clear exceptions that can greatly reduce the time you have.
Do Not Delay Getting Help
If your family is grappling with the pain and misery of losing a loved one due to someone else's careless conduct, you owe it to yourself to contact an attorney with the experience, compassion, and tenacity to pursue justice for you and your family. At Crossroad Legal, our attorney has spent the last decade fighting for injury victims throughout the entire country. Jaye R. Lindsay has successfully litigated wrongful death and survival claims in over 30 counties in Illinois and has co-counseled cases in New York, Florida, Texas, and Missouri. He is a regular speaker on matters involving the interplay between probate court and personal injury claims and has published extensively on the subject, even authoring continuing education materials that are used by attorneys across the State of Illinois.
We focus on catastrophic cases involving motorcycle crashes, motor vehicle fatalities, trucking accidents, elder abuse and neglect cases, and much more. Our firm is made up entirely of combat veterans, from our attorney to our office manager, so you can rest assured you are working with people who care deeply about justice and defending the rights of Americans in our community.
For a completely free and zero obligation consultation, give our office a call at (618) 515-5555. Someone is available to take your call 24/7.