Wrongful Death Lawyer
When a family in Aurora or elsewhere in Kane County loses someone to negligence, the legal questions arrive at the worst possible time. This page is meant to answer the first few, so you know what you are dealing with before you call.
Two claims, not one
Illinois law generally allows two related claims after a death caused by negligence, and they are brought together but valued separately.
A wrongful death claim under the Wrongful Death Act, 740 ILCS 180/1 et seq., compensates the surviving spouse and next of kin for their own losses. A survival action under 755 ILCS 5/27‑6 belongs to the estate and compensates for what the deceased person suffered between the injury and death — conscious pain and suffering, and medical expenses incurred before death. Where death was not instantaneous, the survival claim can be a significant part of the case, and it is the one families most often do not know exists.
What may be recoverable
The Wrongful Death Act allows damages “with reference to the pecuniary injuries resulting from such death, including damages for grief, sorrow, and mental suffering.” 740 ILCS 180/2. That last phrase was added to the statute in 2007 and it matters: Illinois wrongful death damages are no longer limited to dollars and cents.
- Loss of the financial support the deceased provided
- Loss of society, companionship, and consortium
- Grief, sorrow, and mental suffering of the surviving spouse and next of kin
- Loss of instruction, moral training, and guidance to children
- Funeral and burial expenses
- Through the survival action, the pain and suffering and medical expenses of the deceased before death
Since a 2023 amendment, punitive damages are available in Illinois wrongful death and survival actions where the conduct warrants them. Public Act 103‑514, effective August 11, 2023, added “including punitive damages when applicable” to 740 ILCS 180/1, 740 ILCS 180/2, and 755 ILCS 5/27‑6. The change applies to actions filed on or after that date, and punitive damages remain unavailable in healing art and legal malpractice actions and in actions against the State or a unit of local government.
Who brings the case
A wrongful death action must be “brought by and in the names of the personal representatives of such deceased person,” for the exclusive benefit of the surviving spouse and next of kin. 740 ILCS 180/2. In practical terms that means an estate usually has to be opened and a representative appointed before the case can be filed — a step families rarely anticipate, and one that takes time. Any settlement or judgment is then distributed among the spouse and next of kin, subject to court approval.
Deadlines are shorter than people expect
The Wrongful Death Act sets the general period at two years from the date of death. 740 ILCS 180/2. There are important variations:
- Five years where the death resulted from violent intentional conduct — but only as against the person who committed that conduct
- One year after the final disposition of the criminal case where the defendant has been charged with first or second degree murder, involuntary manslaughter, reckless homicide, or drug‑induced homicide — again, only as against the person charged
- One year for any claim against a local public entity or its employees, under the Tort Immunity Act, 745 ILCS 10/8‑101 — which can apply where a municipality, a school district, a park district, or a public hospital is involved
Those extended periods run against the person who committed the act. They do not necessarily extend the deadline as to a co‑defendant, an employer, or an insurer. If you are weighing whether to call, call — a deadline is the one problem in a case that cannot be fixed afterward.
What we do first
We investigate before the scene changes and before the records are gone: obtaining the police and coroner materials, preserving vehicles and equipment, identifying witnesses while memories are fresh, and locating every applicable insurance policy. In many cases the recovery is limited less by liability than by how much coverage anyone thinks to look for. Where the death arose from a crash, a jobsite, a nursing facility, or medical care, the parties who may be responsible are frequently more numerous than the family was told.
We also handle the estate mechanics so the family is not trying to learn probate procedure in the middle of grieving.
Questions we are asked
Who is entitled to the recovery in an Illinois wrongful death case?
The surviving spouse and next of kin, in proportions determined by the court based on the degree of dependency. The action itself is brought by the personal representative of the estate on their behalf. 740 ILCS 180/2.
Do we have to open an estate?
Almost always, yes — the Act requires the case to be brought by a personal representative, and the survival claim belongs to the estate. We handle that step as part of the case.
How long do we have to file?
Generally two years from the date of death, with longer periods in certain cases involving violent intentional conduct or a pending criminal prosecution, and a much shorter one‑year period where a local governmental body is involved. Because the exceptions are narrow and apply only to certain defendants, the deadline should be confirmed for your specific facts rather than assumed.
There is a criminal case going on. Should we wait?
No. The civil case is separate, the burden of proof is lower, and evidence you need can be lost while the criminal case proceeds. A civil case can often be filed and then managed around the criminal proceeding.
Can we recover punitive damages?
Since August 11, 2023, punitive damages are available in Illinois wrongful death and survival actions where the conduct justifies them, for actions filed on or after that date. They remain unavailable in medical and legal malpractice cases and in claims against government entities.
Related pages: Car accidents · Truck accidents · Nursing home abuse · Medical malpractice