It may not be as clear as you think.
When negligence results in death, the law has a couple ways of compensating for the loss. First, if the person did not die immediately, her estate might choose to bring a survival action. Second, the person’s family might choose to bring a lawsuit based on their own loss. After all, the death of a spouse, parent, or child can have a lasting and devastating impact on the family, not only emotionally, but also financially. These are called wrongful death actions. Many cases involve claims for both.
Clients often come to an attorney consumed by grief. Perhaps the client just lost a spouse or elderly parent. The deceased person may have children by more than one marriage. There may even be a will. Close family members often assume that as a spouse or child, they will receive the full sum of the court’s award. Likewise, they might have heard that the will determines who gets the money. But it is not always that easy.
Survival v. Wrongful Death
Since a survival action belongs to the deceased person’s estate, the will would indeed control that type of case. This requires that a probate estate be established with the appropriate court prior to filing the lawsuit. If there is no will, the Illinois Probate Act determines the order in which family members may serve as an administrator to bring the lawsuit. Experienced personal injury attorneys can help families and executors navigate the confusing issues that arise in probate court, or they may advise the client to seek a separate lawyer to handle that aspect of the case.
Unlike survival actions, since wrongful death lawsuits are designed to award family members for their losses, the Illinois Wrongful Death Statute determines who is qualified to bring this type of case. It may not always be the same people as in the survival action, especially if a will is involved.
For instance, consider an elderly woman who dies as a result of nursing home abuse and leaves a will naming her cousin as her executor and sole heir. The woman may have left 2 adult children. When it comes to the survival action, her cousin would likely be entitled to the full value of any award the court may enter for claims brought under that statute. Alternatively, the adult children would receive the award if based on the wrongful death part of the case. This is because that statute lists them higher in order of preference than a cousin. Since many cases involve both claims, courts may apportion how much of an award goes to each type of claim.
As you can see, determining who gets to act as plaintiff and who gets what share of an award is rarely as straightforward as one might imagine. Therefore, it is crucial to find an experienced personal injury lawyer who understands the complex world of wrongful death litigation and can obtain the justice your family deserves.
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