Who Can File A Wrongful Death Lawsuit?

Losing a loved one is an experience that defies description. The grief is often compounded when that loss was preventable and caused by someone else’s negligence or reckless behavior. In these moments, “justice” feels like a distant concept.

At Anspach Law Office, we understand that no amount of money can replace a family member. However, Illinois law does provide a mechanism to hold wrongdoers accountable and procure resources to help your family move forward. If you are facing the aftermath of a fatal accident in Illinois, you may be wondering who has the legal standing to take action.

Here, we discuss why only a personal representative can file a wrongful death lawsuit in Illinois, as well as what rights different family members hold.

Why Is a Personal Representative Required?

In some states, any family member can go to the courthouse to file a suit. Illinois law is different. Under the Illinois Wrongful Death Act, a wrongful death claim must be filed by the personal representative of the deceased person’s estate.

This distinction is crucial. While the lawsuit is filed for the benefit of the surviving family members, it cannot usually be filed by them individually unless they have been appointed as the representative.

• If there is a will: The personal representative is usually the “executor” named in the decedent’s will.
• If there is no will or named executor: The court will appoint an administrator.

This rule is meant to help the lawsuit be managed in an organized way, preventing multiple conflicting lawsuits from being filed over the same tragedy.

Who Actually Recovers Damages?

While the personal representative of the estate creates the lawsuit, he or she essentially acts as a voice for the beneficiaries. The law states that the amount recovered is for the “benefit of the surviving spouse and next of kin.” “Next of kin” generally refers to blood relatives who would legally inherit property if the deceased died without a will. This hierarchy typically prioritizes surviving spouses, then children (including adopted children), parents, and siblings.

What If There Are Disputes Among Relatives?

It is an unfortunate reality that grief can sometimes lead to conflict. What happens if family members disagree on how a settlement should be divided? If a settlement is reached but the family cannot agree on how to split it, the court will typically intervene. The judge will likely conduct a hearing to determine and assign a “degree of dependency” for each beneficiary. The court will then calculate the percentage of the award each person receives based on their financial and emotional reliance on the deceased.

Compassionate Guidance When You Need It Most

Navigating the Illinois court system while mourning is a burden no one should carry alone. You need an advocate who can handle the procedural requirements so you can focus on healing.

If you have questions about your eligibility to file a wrongful death claim, or if you are unsure who will act as the personal representative for your loved one, contact Anspach Law Office today. Let us be your guide through this difficult time.