Former State's Attorney With Over 38 Years of Experience

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Who Can File a Wrongful Death Claim?

Chicago Region Wrongful Death & Injury Attorney

Who Can File a Wrongful Death Claim in Illinois?

Generally, a wrongful death claim may be filed by the victim’s legal representative, representing the victim’s estate. The wrongful death claim is filed on behalf of certain survivors based on their relationship to the victim. Depending on the state, the survivors eligible to file a wrongful death claim may vary. In Illinois, wrongful death claims are governed under the Illinois Wrongful Death Act. According to 740 Illinois Compiled Statutes 180, the Illinois Wrongful Death Act, a party may file a wrongful death claim whenever “the death of a person shall be caused by wrongful act, neglect or default,” and such act, if it had not caused the victim’s death, would have otherwise allowed the victim to sue for damages personally.

This Act specifies that only the surviving spouse or children of the deceased victim may file a wrongful death lawsuit in Illinois. However, if there are no surviving children or spouse, then other relatives may file a wrongful death claim, including surviving parents or siblings of the deceased victim. While these family members are generally able to file wrongful death lawsuits though, the case itself will be filed under the estate’s personal representative’s name, such as the executor, rather than under the family member’s name. 

How to File a Wrongful Death Claim in Illinois? 

When filing a wrongful death claim in Illinois, four elements must generally first be satisfied before a lawsuit can be filed:

  1. The victim died
  2. Another person’s negligence caused the victim’s death
  3. The victim’s surviving family members have suffered harm, including financial harm, by the victim’s death
  4. A personal representative


The steps to filing a wrongful death claim typically include:

Contact an Experienced Attorney

Often, the most crucial step to successfully pursuing a wrongful death claim is to hire an experienced and skilled lawyer, such as Michael J. Brennan. Your lawyer will generally discuss your legal options and handle your case while, in turn, allowing you to focus on recovering from the emotional pain of losing a loved one.


After contacting an experienced lawyer like Michael, your lawyer may often begin by investigating the accident or events that led to your loved one’s death. This investigation may include gathering any relevant evidence, such as pictures of the scene of the accident and contact information for any witnesses, documentation such as any police reports or insurance claims filed after the accident.

Filing a Wrongful Death Lawsuit 

Your lawyer will generally discuss your legal options and make sure that your wrongful death lawsuit is filed within the applicable statute of limitations.

Negotiating with the Insurance Company

Your attorney may also often negotiate with the other party’s insurance company to reach an acceptable settlement. Your attorney may make a settlement offer, which may then often be rejected while the insurer presents a counteroffer while each side debates the claim.


If the insurance company refuses to agree to your attorney’s settlement offers, your lawyer may then take your case to trial and present the evidence gathered during the investigation phase and during the lawsuit proving the other party’s liability for your loved one’s death as well as the financial and emotional impacts their death has had on you.

Can You Sue A Hospital for Wrongful Death?

Generally, if your loved one was killed due to medical malpractice, you may be able to sue the hospital where the victim was treated and which employed the doctors or staff that committed the medical malpractice. However, if the hospital is a public hospital run by either the state or county, then there may be some limitations on your ability to pursue a wrongful death claim. Typically, government-run entities are given some protection from lawsuits, known as tort immunity. Because the government funds these entities, they are thus essentially financed by the taxpayer, creating an interest to protect such entities from lawsuits in many cases.

When filing a lawsuit against a public hospital, you will be suing the county or state itself, rather than the hospital, and these claims will be filed in the Court of Claims if against the state. In contrast, lawsuits against any individual doctors will be filed in regular civil court. However, Illinois law does provide that the usual one-year statute of limitations for lawsuits against public agencies does not apply when the hospital is sued for a “patient care” injury, in which case you will have two years to file your lawsuit, similar to other personal injury claims.

Wrongful death claims may often be very complicated, especially as the compensation you are seeking is different from other personal injury claims and because you are pursuing compensation for an accident that happened to your loved one rather than an accident that happened to you. You should contact Michael J. Brennan to take advantage of his years of experience in helping the families of other victims pursue the compensation they may be entitled to after their loved one has been killed in an accident as a result of another party’s negligence.

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