When a loved one is lost in an accident, surviving family members can obtain financial compensation by asserting a wrongful death lawsuit. A wrongful death lawsuit is based on the Illinois Wrongful Death Act and the Illinois Survival Claim Act. Different parties can make claims for compensation under each statute. If the case settles, the distribution of the settlement depends on who is recovering and under which law they filed a lawsuit. Judges use several factors to determine how to divide a wrongful death settlement in Illinois.
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How Will the Court Divide a Wrongful Death Settlement in Illinois?
To understand how a court divides money from a settlement, you must first understand a wrongful death lawsuit. A common question surviving family members have is “is wrongful death a personal injury claim?” A wrongful death lawsuit is essentially a normal negligence claim. In order to win a wrongful death lawsuit, you have to prove all the elements of your claim by a preponderance of the evidence, i.e., 51%. Wrongful death lawsuits refer to two legal claims, a wrongful death claim and a survival claim. Each of these claims can be brought by different family members or individuals. Additionally, each claim allows different surviving family members to seek compensation after a fatal accident.
Under the Illinois Wrongful Death Act, qualified surviving family members are allowed to bring a legal claim against a negligent party. Surviving family members are asserting their own individual claims. Under the Illinois Survival Act, the victim’s estate is asserting a claim on behalf of the victim. A survival claim creates the legal fiction that the decedent did not die and is pursuing his or her own personal injury.
In wrongful death settlements, the distribution of money is different for each type of claim. Under a survival claim, money from the claim is given to the victim’s estate and is then considered an asset of the estate. The money is then distributed according to the victim’s will. If the victim did not have a will, the money is distributed according to Illinois State Probate Law. Under a wrongful death claim, money from a settlement or judgment is divided and distributed by a judge. Specifically, a hearing will be held by the court in order to determine how much money each qualified family member will receive from the settlement. Under the Wrongful Death Act, qualified family members must prove their level of dependence on the victim. The court will then divide the settlement in proportion to each qualified family member’s financial reliance.
Who Can Recover in a Wrongful Death Lawsuit?
Under the Wrongful Death Act, a lawsuit must be asserted by the personal representative of the deceased, however, only qualified family members can recover financially. Typically, qualified family members include the surviving spouse and the “next of kin.” If the victim did not have a spouse or living children, next of kin includes the victim’s grandchildren. If there are no grandchildren, the victim’s parents and siblings are the next of kin. If the victim had no living parents or siblings, the victim’s nieces or nephews are considered next of kin. Additionally, under Illinois law, half and full-blooded relatives are treated equally, as are adoptive parents and children.
Under a survival claim, recovery depends on whether a person was in the victim’s will or if they are listed as next of kin. If the victim had a will, money from the settlement will be distributed according to the terms of the will. If the victim had no will but had a spouse, the spouse gets the victim’s estate. If the victim had a spouse and children, the surviving spouse gets half of the estate, while the remainder is divided equally among the surviving children. If he or she had no spouse but had surviving children, each receives an equal share. If the fatal accident victim had no spouse or children, the settlement award would extend to the next of kin as established under Illinois law.
How Do You Calculate a Wrongful Death Settlement?
The value of a settlement depends on the damages that can be recovered under your wrongful death claim and survival claim. Under a wrongful death claim, the surviving family members’ damages are based on the emotional and financial loss they suffered due to the death of the victim. A survival action belongs to the victim’s estate, which can claim economic and non-economic damages. Economic damages consist of the victim’s medical expenses and lost wages. Additionally, burial expenses can also be claimed as economic damages. Non-economic damages consist of the pain and suffering the victim endured as a result of his or her injuries, leading up to his or her death.
How an Attorney Can Help You Win Your Illinois Wrongful Death Lawsuit
Insurance companies fiercely defend against wrongful death claims, because settlements for fatal accidents require them to compensate the victim’s family and his or her estate for the value of the victim’s life. While this value may be difficult to quantify, once established, it creates significant financial exposure for insurance companies. A wrongful death lawyer can help you build a strong lawsuit against an insurance company after your loved one’s fatal accident.
Due to the complex nature of the circumstances of fatal accidents, a detailed investigation by an attorney is essential to obtaining fair compensation. Specifically, an attorney can help you prove the other person’s negligence. Additionally, an attorney can help you calculate damages by collecting your loved one’s financial information and medical bills. He or she can also help you file your claim in a timely manner, as the Illinois wrongful death statute of limitations is two years from the date of your loved one’s death. Finally, he or she can help you figure out how the judge will divide a wrongful death lawsuit in Illinois.
