Is There A Statute of Limitations For The Illinois Survival Act and What Damages Are Available?

Under the Illinois Survival Act, a deceased person’s estate may sue to recover damages that would have been available to the deceased if he or she had lived. This is somewhat different from a wrongful death claim that surviving family members may bring after a loved one dies suddenly and accidentally because of negligence. In the state of Illinois, if you lose a loved one unexpectedly, it is important to understand clearly the distinction between survival actions and wrongful death actions.

Historically, a person’s right to sue for damages – for defamation, discrimination, or injury, for example – ended with the person’s death. However, the end of the right to pursue damages sometimes meant severe financial hardship for the deceased person’s family, who were often saddled with expenses but blocked from obtaining the compensation that rightly belonged to their loved one.


Although the Illinois Survival Act preserves a decedent’s pending litigation, it is more commonly used on behalf of those who die before they can sue for personal injury. The executor of a decedent’s estate, who is appointed by the probate court, may bring a survival claim to recover damages the decedent would have received if the decedent had survived. Those damages may include compensation for medical expenses, lost wages, pain and suffering, and all other damages the decedent could have claimed if he or she had lived.


Both a survival claim and a wrongful death claim can help surviving family members. A wrongful death claim is brought on behalf of surviving family members for their own damages as the result of the death. These damages may include the decedent’s lost earning capacity – what the decedent would have contributed to the household if he or she had lived – along with loss of love, support, affection and companionship, and for spouses, loss of consortium can also be claimed as damages.

The Illinois Survival Act, in contrast, does not directly compensate survivors for their own losses. Instead, it preserves a deceased plaintiff’s claim beyond the person’s death. To file a survival claim on behalf of the decedent rather than a wrongful death claim on behalf of themselves, the decedent’s surviving family members first must establish an estate for their lost loved one.


If negligence caused the accident that led to the death, the decedent’s estate can pursue a survival claim on the decedent’s behalf for medical expenses, lost earnings, and for the decedent’s pain and suffering from the time of the accident until the time of death. If the decedent was the plaintiff in a personal injury, defamation, or discrimination lawsuit that was pending at the time of death, the decedent’s estate may continue to pursue that claim. If an estate is created to file a survival claim, or if the executor of a decedent’s estate chooses to bring a survival action, the claim is filed by the estate in the appropriate court.

Surviving family members in the greater Chicago area should speak with an experienced Chicago wrongful death attorney regarding their legal rights and options after the sudden, accidental death of a loved one. For more than twenty-five years, Chicago wrongful death attorney Joseph M. Dooley has provided sound legal advice and representation to surviving family members in their hour of sorrow and need. Your family may be able to receive damages through a wrongful death claim, through the Illinois Survival Act, and in some cases, both. However, you’ll need to take action quickly.


In 2015, the Illinois Appellate Court for the Third District held that the state’s two-year statute of limitations applies from the date of death for both survival claims and wrongful death claims. A wrongful death lawsuit may be filed when a preventable death has been caused by someone else’s negligence. Who can file a wrongful death claim? The surviving family members entitled to file a wrongful death action are the decedent’s “next of kin,” the spouse or blood-related and usually immediate family members who would automatically, legally inherit a decedent’s property if a decedent died intestate (without a will).

Opening an estate for the decedent is not necessary when survivors pursue a wrongful death action since a wrongful death claim is not a claim on the decedent’s behalf. Because a wrongful death claim reimburses only the surviving family members for their losses, any settlement they receive or verdict they are awarded is entirely free from any medical liens or any claims of the decedent’s creditors. In this regard, a survival claim is different. Before creating an estate and bringing a survival claim, surviving family members will want to determine – and usually with an attorney’s help – if the proceeds would be devoured by creditors or lien claimants.


In a survival action, any damages received are the property of the estate and must be used first to pay creditors of the deceased. If the decedent left substantial debts, family members might be wiser to pursue only a wrongful death action, especially if only a restricted amount of compensation is available, like a car insurance policy. Every case, of course, will be different, so the insight and counsel of an experienced wrongful death lawyer is imperative.


Every adult knows that risks and dangers are pervasive in the modern world. While many wrongful death claims arise from fatal traffic accidents caused by negligent drivers, wrongful death can also happen in a number of other scenarios. If a landlord fails to repair a safety railing, for example, or if a doctor fails to diagnose kidney disease, a wrongful death can happen. If a wrongful death happens to your family in or near Chicago, you’ll need time for grieving and healing, but you will also need sound legal advice as quickly as possible.

A family member’s sudden death has emotional and financial ramifications that can go beyond words. While no amount can genuinely compensate for such a loss, a wrongful death claim or a survival claim can help families cover their unexpected expenses, avoid financial hardship, and move ahead constructively with their lives.


Even though it may be difficult at such a time, it’s imperative to speak with a wrongful death attorney as quickly as you can after the fatality. With more than a quarter-of-a-century of legal experience, Chicago wrongful death attorney Joseph M. Dooley is prepared to advise and assist you and your family. Contact him by email at [email protected] or call 312-236-7282 for the legal help your family needs regarding a survival claim or a wrongful death claim.