Who Can File a Wrongful Death Lawsuit in Illinois?

 Posted on January 29, 2026 in Wrongful Death

A wrongful death lawsuit in Illinois is meant to hold someone financially responsible when they cause the death of another. This includes paying compensation to surviving family members.

As of 2026, the majority of these cases are related to auto accidents, even though they stem from many different situations. The National Highway Traffic Safety Administration recently reported that tens of thousands of people died in traffic crashes nationwide during previous years, with a significant share of those deaths involving impaired driving.

When a fatal accident happens, families are often left asking who has the legal right to take action. Our Orland Park, IL wrongful death lawyer can help you understand the laws that apply to these cases and how they affect your family.

Who Has the Legal Right To File a Wrongful Death Lawsuit in Illinois?

In Illinois, a wrongful death lawsuit cannot be filed by just anyone who is grieving the loss. Under the Illinois Wrongful Death Act, 740 ILCS 180/2, the lawsuit must be filed by the personal representative of the deceased person’s estate.

The personal representative is often named in the person’s will. If there is no will, the probate court appoints someone to serve in that role. While family members benefit from the lawsuit, the personal representative is the one who files and manages the case on behalf of the estate.

Which Family Members Can Recover Damages in a Wrongful Death Case in Illinois?

Although the personal representative files the lawsuit, damages are awarded for the benefit of certain surviving family members. Illinois law limits recovery to the deceased person’s next of kin.

This usually includes a surviving spouse and children. If there is no spouse or child, parents or other close relatives may qualify. The court determines how any recovery is divided based on each person’s relationship to the deceased and their level of dependency.

What Types of Losses Can Be Recovered in an Illinois Wrongful Death Lawsuit?

Wrongful death damages focus on the harm suffered by surviving family members, not the pain experienced by the deceased person. These losses can be both financial and emotional.

Common categories of wrongful death damages include:

• Loss of financial support and income

• Loss of companionship, guidance, and care

• Grief, sorrow, and mental suffering

Illinois does not impose a cap on wrongful death damages, which allows courts to consider the full impact of the loss on the family.

How Is a Wrongful Death Case Different From a Survival Action?

Illinois law allows two related but separate claims after a fatal injury. A wrongful death claim addresses losses suffered by surviving family members. A survival action focuses on losses suffered by the deceased person before death.

Under the Illinois Survival Act, 755 ILCS 5/27-6, the estate may recover damages for medical bills, lost wages, and pain and suffering the person experienced before passing away. These two claims are often filed together but serve different legal purposes.

How Long Do You Have To File a Wrongful Death Lawsuit in Illinois?

Wrongful death claims are subject to strict deadlines. Most wrongful death lawsuits must be filed within two years of the date of death. If the death resulted from criminal conduct, different timing rules may apply. Missing the filing deadline can permanently bar the claim, regardless of its strength.

What if Multiple Family Members Disagree About Filing a Wrongful Death Lawsuit?

Disagreements can happen when families are under stress. Because the personal representative controls the lawsuit, disputes may arise over who should serve in that role or how the case should proceed.

Probate courts have the authority to resolve these disputes. The court’s goal is to ensure the case moves forward in a way that protects the interests of all eligible family members.

What Must Be Proven in an Illinois Wrongful Death Case?

To succeed in a wrongful death lawsuit, the personal representative must show that the death was caused by another party’s negligence or wrongful act. This involves proving duty, breach, causation, and damages.

In practical terms, this means showing that the defendant failed to act with reasonable care and that this failure directly caused the fatal injury. An attorney can help gather evidence, work with experts, and present this connection clearly so the court understands how the negligence led to the loss.

Schedule a Free Consultation With Our Cook County, IL Wrongful Death Attorney

Wrongful death cases are emotionally difficult and legally complex. At Law Office of J. Francis Barker, P.C., you will work with a local attorney who will always advocate for his clients. No case is too big or too small, and yours will receive his full attention. Your issue will not be handed off to a paralegal or associate. Call 708-321-1223 to speak with an Orland Park, IL wrongful death lawyer about your legal options and next steps.