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Medical Malpractice

How to Divide a Wrongful Death Settlement

August 31, 2022

When a person dies because of the negligent or intentional acts of another, a wrongful death lawsuit can be filed by the decedent’s family members against the responsible party. Compensation is paid to the decedent’s estate, then Illinois law decides how to divide a wrongful death settlement.

What Is Wrongful Death?

According to Illinois law, wrongful death is defined as the death of an individual caused by another party’s wrongful act, neglect, or default. In Illinois, a wrongful death claim can be filed in any situation where the deceased individual could have filed a personal injury claim if he or she had survived the injuries. In essence, a wrongful death lawsuit is a type of personal injury lawsuit, except another party, must step in to file the lawsuit on behalf of the deceased individual.

What Types of Actions Constitute Wrongful Death Claims?

The three main actions that lead to wrongful death claims are negligence, medical malpractice, and intentional acts that cause harm.


Negligence is linked to actions that involve reckless or careless behaviors that violate a reasonable duty of care to protect others from harm. In wrongful death claims, negligence is often linked to car and truck accidents, motorcycle and bicycle accidents, pedestrian accidents, and slip and fall accidents. In the vehicle and pedestrian accidents, negligence is often connected to reckless or careless behaviors like speeding, running lights and stop signs, drunk and/or drug-impaired driving, drowsy driving, and distracted driving.

Medical Malpractice

Medical malpractice is linked to negligent actions of a hospital or medical professional that cause harm to a patient. This type of negligence is based on a reasonable duty of care given to a patient under a doctor’s care. Under state laws, hospitals, clinics, urgent care facilities, and medical professionals including doctors, nurses, surgeons, dentists, and emergency responders have a duty of care to protect their patients from harm, injury, and death while under their care.

Intentional Acts

Intentional acts of harm that result in the death of a person can also give cause for wrongful death claims. Death may be the result of personal injuries caused by intentional reckless or careless behaviors or intentional acts of violence. Intentional acts are often linked to intentional behaviors like anger or reckless disregard for another person’s safety. The differences between negligent actions and intentional actions are often subtle. In Illinois wrongful death cases, Chicago wrongful death lawyers may be needed to show proof of intent and help with questions and concerns related to how to divide a wrongful death settlement.

Who Can File Wrongful Death Claims?

If an individual suffers fatal injuries before pursuing a personal injury lawsuit against the person or organization responsible for his or her death, the individual’s survivors (family members) acting on behalf of the deceased individual are entitled to file a wrongful death lawsuit. The aim of such claims is to collect monetary damages owed to the decedent or his or her next of kin. Based on several factors, the court determines how to divide a wrongful death settlement.

In some states, the law allows the deceased person’s family members to file a wrongful death lawsuit. In Illinois, state laws require a wrongful death claim to be filed by a personal representative of the deceased person, known as the executor of the decedent’s estate. Under the law, the executor of the estate is responsible for pursuing a wrongful death claim on behalf of a deceased party, as well as carrying out any other tasks related to the estate.

If an individual dies without appointing an executor of his or her estate, the court may appoint one. In most cases, the appointed executor is a family member of the deceased person. This may be a parent, a sibling, an adult child, or another relative. The executor must be over 18 years of age.

Claims Under the Illinois Survival Act

The Illinois Survival Act extends a person’s right to pursue a personal injury claim beyond his or her death. When a person dies before pursuing a personal injury lawsuit against another person or organization responsible for his or her death, the estate acting on behalf of the deceased person initiates such an action to collect damages. If the lawsuit is successful, any compensation awarded is paid to the estate, then the estate decides how to divide a wrongful death settlement.

When compensation for wrongful death is received under the Illinois Survival Act, it is generally divided based on the specifications of the decedent’s will or the state’s inheritance laws. 

For instance, the person leaves a will that gives 75% of his estate to a surviving parent and the remaining 25% to a surviving sibling. Any damages awarded in a wrongful death lawsuit would likely be distributed in those proportions. However, if the decedent did not leave a will, known as dying intestate, Illinois law dictates how to divide the wrongful death settlement award.

Claims Under the Illinois Wrongful Death Act

When compensation for wrongful death is received under the Illinois Wrongful Death Act, only the decedent’s spouse and children are entitled to recover damages. Although the estate is still responsible for filing the wrongful death lawsuit, the wrongful death damages that are awarded don’t get paid to the estate. Instead, the Illinois court that’s hearing the lawsuit has the authority to determine how the money is divided between the surviving spouse and children. When determining how to divide the wrongful death settlement, the court looks at factors such as how much each family depended financially on the deceased person.

What Damages Are Possible in an Illinois Wrongful Death Claim?

When a wrongful death lawsuit is successful, the court will award damages for the deceased person’s losses. Under Illinois law, damages are intended to compensate the decedent’s survivors for financial losses as well as intangible losses suffered as a result of his or her death. Common damages awarded include:

Economic Damages

Economic damages are based on tangible damages that are equated to dollar figures and monetary values. Compensation paid for economic damages includes:

  • Medical Expenses – including costs related to medical care and treatments, hospital bills, in-home care, prescription medications, and mobility aids
  • Funeral and Burial Expenses – including costs related to obtaining a burial plot, cremation expenses, funeral home expenses, and burial costs
  • Lost Income – including financial support and future financial support due to the loss of the deceased person’s employment
  • Lost Inheritance – including all earnings and other funds in bank accounts, savings accounts, CDs, IRAs, and other accounts that the deceased person would have saved and left to surviving family members

Non-Economic Damages

Illinois is one of a few states that allow certain family members of the deceased person to receive compensation for their own pain and suffering or grief that’s caused by a loved one’s death:

  • Loss of Financial Support – including lost wages and benefits that the deceased would have provided to his or her family members
  • Loss of Consortium – including loss of companionship, loss of a sexual relationship, and loss of society that the deceased would have provided to his or her spouse
  • Loss of Guidance – including loss of education, instruction, and moral training the deceased would have provided to any surviving children
  • Pain and Suffering – including survivors’ grief, mental suffering, and sorrow that the decedent’s family members go through due to wrongful death

Punitive Damages

Punitive damages are a special category of compensation in wrongful death lawsuits that don’t compensate the victim for economic or non-economic damages. This type of damage is awarded for the sole purpose of punishing the at-fault person who caused wrongful death to another person through reckless actions, either intentionally or unintentionally.

Punitive damages are often awarded in wrongful death cases caused by vehicle accidents, motorcycle and bicycle accidents, and pedestrian accidents that involve speeding or drunk and/or impaired driving, as well as slip and falls that involve careless disregard for safety, and acts of violence that involve intentional harm.

When the wrongful death of a person involves acts of violence or intentional harm, the case may be tried as a criminal homicide case, as well as a wrongful death case. Wrongful death lawsuits involving guns may be linked to multiple parties, including the person who fired the gun, the gun owner, the gun retailer, and the owner of the business or property where the shooting took place. 

Wrongful death lawsuits involving fire injuries and explosions may be linked to arson, as well as faulty equipment, defective products, and dangerous chemicals found in a workplace. If death occurs at a workplace due to fire hazards, a wrongful death lawsuit can be filed against the business owner, property owners and managers, negligent contractors, and maintenance and cleaning companies.

How to Divide a Wrongful Death Settlement

State laws regarding wrongful death lawsuits vary from state to state. While some states put a cap on the amount of damages that can be awarded in a wrongful death case, Illinois currently has no caps on damage awards. Compensation for damages and how to divide a wrongful death settlement depends on the court.

In wrongful death cases, there is no average value award that’s assigned to wrongful death. The value of a claim depends on a variety of case-specific factors that include the following:

  • The age of the deceased person
  • The income and earning capacity of the deceased person at their time of death
  • The age of the plaintiff filing the lawsuit
  • The plaintiff’s relationship with the deceased person
  • The specifics of the state’s wrongful death laws where the death occurred

When determining what types of damages can be awarded in a wrongful death lawsuit, the court will look closely at the state’s wrongful death laws and then interpret those laws as part of an analysis of the relationships between the deceased person and his or her surviving family members.

Filing a Wrongful Death Lawsuit

If a loved one dies as a result of another person’s actions, there may be grounds for a wrongful death lawsuit. A wrongful death lawsuit is intended to compensate the survivors of the deceased person for the losses caused by their family member’s death.

If you plan to file a wrongful death lawsuit on the behalf of a deceased family member, you must abide by the state’s statute of limitations, the time limit allowed to file a claim. In Illinois, the statute of limitations for wrongful death lawsuits is two years from the date of the person’s death, unless the result of an intentional, criminal act. Missing the filing deadline will likely result in the court refusing to hear your case.

It’s also important to note that in Illinois a wrongful death lawsuit must be filed by the executor of the deceased person’s estate, a personal representative typically appointed by the decedent before his or her death. During a court trial or settlement agreement, this appointed person will become the plaintiff who is filing a lawsuit against the defendant who’s responsible for the deceased person’s wrongful death. The plaintiff, or executor of the estate, is usually a family member of the deceased person and acting on his or her behalf to obtain compensation for damages that were caused by the family member’s death.

Wrongful death cases can be complicated due to state laws, filing regulations, and determinations on how to divide a wrongful death settlement. While some wrongful death cases proceed to court actions, others are settled outside of court between the plaintiff’s lawyers and the defendant’s lawyers, who represent big insurance companies. Whether you go to court or negotiate a settlement agreement, you need a wrongful death lawyer who has knowledge and trial experience in wrongful death lawsuits. Depending on the circumstances of your case, you need to know if a court trial or a settlement arrangement is in your best interest to receive adequate and fair compensation for the loss of your loved one.

About The Author

Photo of Jeffrey  Goldberg
Attorney Jeffrey M. Goldberg has spent his entire professional career handling cases involving birth injury, medical malpractice, product liability and related accidents.