The Difference Between Wrongful Death and Survival Actions in Illinois

 Posted on July 23, 2025 in Wrongful Death

Losing a loved one due to another person’s negligence is devastating. In Illinois, families may be entitled to compensation through a wrongful death claim, a survival action, or both. While both involve the death of a person caused by another party, they serve different purposes under the law. Understanding the difference can help families pursue the appropriate legal remedies. For guidance in this process, you should speak with an experienced Chicago, IL wrongful death lawyer.

How Does Illinois Law Define Survival Action and Wrongful Death?

The Illinois Wrongful Death Act defines a wrongful death as when someone dies due to the negligence, recklessness, or intentional actions of another person or party. The purpose of a wrongful death claim is to compensate the surviving family members for the harm they personally suffered due to the loss of their loved one. This includes financial support the deceased would have provided, as well as emotional loss and grief.

A survival action, on the other hand, is meant to recover damages that the deceased person would have been entitled to if they had lived. This might include medical bills, lost income, and pain and suffering between the time of the injury and the time of death. These claims are brought under 755 ILCS 5/27-6.

When Should You File a Wrongful Death or Survival Action Claim in Illinois?

Wrongful death and survival actions in Illinois must generally be filed within two years of the death, though exceptions exist, such as in medical malpractice cases. If you miss the deadline, you might be barred from recovering any damages. It is important to gather evidence, such as medical records and witness statements, early. Depending on the circumstances, both types of claims may be filed together. Because these cases can be legally complex and involve disputes over damages, consulting an experienced attorney can help protect your rights and improve your chances of receiving fair compensation. 

Who Can File a Wrongful Death or Survival Action in Illinois?

For both wrongful death claims and survival actions, the lawsuit must be filed by the personal representative of the deceased person’s estate. This representative is often named in the person’s will. If there is no will, the court may appoint someone, typically a close family member, to act on behalf of the estate.

In a wrongful death case, the personal representative files the claim for the benefit of the surviving spouse and next of kin, such as children or parents. The damages awarded in a wrongful death case are distributed directly to the surviving family members and are not considered part of the estate. 

For a survival action, the personal representative files the lawsuit to recover damages the deceased would have received if they had survived, and the recovered damages become part of the estate, subject to any debts or expenses. Once the estate is settled, any remaining funds are distributed to the heirs or beneficiaries, as outlined in the will or under the Probate Act of 1975.

Schedule a Free Consultation With a Chicago, IL Wrongful Death Attorney 

If you lost a loved one due to someone else’s actions, you may be entitled to pursue a wrongful death claim, survival action, or both. For compassionate and knowledgeable legal guidance, contact the Chicago, IL wrongful death lawyer at Winters Salzetta O'Brien & Richardson, LLC. Call today at 312-236-6324 and schedule your free consultation.