If you’ve suffered the loss of a loved one due to an accident caused by another person, being left with the emotional and financial repercussions is almost too much to bear. Facing medical bills, burial costs, and your everyday expenses without your loved one’s wages can leave you with a difficult choice. You can strive to carry on with the help of friends or family, or you can take a deeper look into your legal options, including an Illinois survival action or wrongful death claim. Through one or both of these claims, you may be able to obtain compensation crucial to getting your financial situation back on track.
To learn more about recovering compensation after a relative’s death, contact an Illinois wrongful death lawyer at Cates Mahoney, LLC. We have years of experience helping individuals bring successful survival and wrongful death claims. Our priority will always be to obtain justice for your loved one and the compensation you deserve.
For more information, contact us today at 618-277-3644. We offer free, confidential consultations.
Illinois’ Survival Actions
Under the Illinois Survival Act, 755 ILCS 5/27-6, your loved one’s estate may have the right to move forward with the legal claim the deceased would have had if they had not died due to someone else’s negligence. This is known as a survival action because, as the name implies, your loved one’s legal cause of action survives after their death. Prior to this law, the cause of action would have ended with your relative’s life. However, Illinois recognized this led to inequitable results for family members after fatal events. Now, the estate can seek compensation the deceased could have recovered had they lived.
The law establishes certain types of actions that will survive, including actions based on recovering compensation for injuries to the person and injuries to real or personal property. If your loved one was killed by someone else’s negligence, such as due to a motor vehicle collision, medical malpractice, or a faulty product, then the executor of their estate may be able to move forward with certain claims related to the personal injuries suffered by the decedent.
Compensation Through Survival Actions
During a survival claim, the estate does not seek compensation for your or other loved ones’ losses. It is not asking for recompense for your pain or personal financial loss. Instead, the estate will ask for the compensation the victim would have been entitled to had they lived, including:
- Lost wages
- Medical bills
- Mental suffering
- Physical pain
When a financial recovery is obtained through an insurance claim or lawsuit under the Illinois Survival Act, it is paid to the decedent’s estate. It is important to consider that if your loved one had creditors and unpaid bills, this compensation will first be used to pay these claims. You and your family will then receive the remainder of the compensation if there is any left after the estate’s debts are settled.
Survival Actions Are Connected to the Probate Estate
Since a survival action is brought by the executor of your loved one’s estate and any compensation recovered is paid to the estate, it is closely connected to the probate process. Prior to moving forward with a survival action, it is important to consider whether your loved one had a will, and if so, it must be admitted and validated in probate. However, an estate can also be opened intestate (without a will) in order to pursue a survival action. Regardless of how you proceed, the probate court will name the executor of the estate.
Once an inventory and accounting of the estate has commenced, your family will be in a better position to make a decision regarding whether a survival action is appropriate. If the compensation would only go to creditors and none to your or your family members, it may not be worth pursuing. However, if the compensation would be necessary to paying the creditors and closing the estate or would ultimately benefit your family, then this may be motivation to bring the claim. An experienced attorney can help you evaluate the pros and cons of the situation.
The Difference Between Survival and Wrongful Death Cases
Some individuals use the terms wrongful death and survival action interchangeably. However, they are different types of cases under Illinois law. When you bring a wrongful death claim against the party that caused your loved one’s death, you seek compensation for you and your other family member’s financial and emotional harm, including funeral and burial expenses, loss of future wages, loss of your loved one’s companionship, services, and contributions to the home, your mental suffering, and grief and sorrow. A survival action is meant to recover compensation for the decedent’s injuries, such as medical bills and conscious pain and suffering.
This is not the only difference between survival and wrongful death actions either. While the estate files the survival claim, certain family members can file a wrongful death claim in Illinois, such as a spouse, parent, or child, which is not always required to be filed by the probate estate. The most significant difference between the two types of claims is that compensation recovered for wrongful death actions is divided among the next-of-kin based on dependency and a number of other factors. This decision with regard to the division of proceeds is made by the presiding court where the family members cannot come to an agreement on how the recovery should be divided. This can be a complicated process that requires the skills of an experienced wrongful death lawyer.
Contact the Belleville Wrongful Death Lawyers of Cates Mahoney, LLC
Determining if you have a survival and/or wrongful death claim after the loss of a cherished loved one can be difficult – emotionally and practically. You may not be sure if you have a right to one or both of these claims, and if you do, how to move forward. At Cates Mahoney, LLC, we have experience helping families like yours investigate their loved one’s death and determine their best legal options. We can explain your rights and help you determine the best course of action for achieving a successful recovery.
We understand that you are going through a difficult time, which is why we offer you compassionate and honest legal advice. We provide you with the legal knowledge you need to make the best decision for your family. If you choose to move forward with a survival and/or wrongful death claim, we will aggressively fight for your right to compensation.
Do not hesitate to contact us for more information about these legal options. Call us at 618-277-3644 or use the online form to schedule a free, risk-free case consultation.