What Is the Difference Between a Wrongful Death Claim and a Survival Action in Illinois?

 Posted on June 30, 2026 in Personal Injury

According to the CDC, unintentional injuries are the third leading cause of death in the United States, accounting for more than 197,499 deaths in 2024. Many of those deaths result from someone else's negligence. When someone dies because of another person's negligence, Illinois law gives the surviving family two separate legal tools. One is a wrongful death claim, and the other is a survival action. They cover different losses, benefit different people, and follow different rules.

If your family is deciding how to take legal action in 2026, a Naperville, IL wrongful death attorney can explain which claims apply to your situation and help you pursue compensation.

What Does an Illinois Wrongful Death Claim Cover?

A wrongful death claim is brought on behalf of the surviving family members. Under the Illinois Wrongful Death Act, 740 ILCS 180/2, the lawsuit must be filed by the personal representative of the deceased person's estate. Any money recovered goes directly to the surviving spouse and next of kin, but not to the estate itself.

The damages focus on what the family lost because of the death. These include:

• Lost financial support the deceased would have provided, including wages and benefits
• Loss of companionship, guidance, love, care, and affection
• Grief, sorrow, and mental suffering of surviving family members

Illinois does not cap wrongful death damages. Instead, juries decide what is fair based on the evidence.

What Does an Illinois Survival Action Cover?

Under the Illinois Survival Act, 755 ILCS 5/27-6, a survival action focuses on what the deceased experienced before dying, not on what the family lost afterward. This claim belongs to the estate, not to the family members personally.

Compensation in a survival action may cover:

• Medical bills from the time of injury to death
• Wages the deceased lost between the injury and death
• The pain and suffering the deceased went through before dying
• Property damage

Money from a survival action is paid into the estate and distributed according to the will. If there is no will, Illinois intestacy law determines the distribution. This is the set of state laws that determine who inherits when someone dies without a written estate plan.

Wrongful death and survival action claims can be filed together, and families often pursue both.

Are Punitive Damages Available in Illinois Wrongful Death Cases?

Punitive damages are a separate category of compensation designed to punish a defendant for reckless or malicious conduct, rather than simply to cover the family's losses. In 2023, Governor Pritzker signed House Bill 219 into law, amending the Illinois Wrongful Death Act and the Illinois Survival Act. For cases filed on or after August 11, 2023, Illinois families may now seek punitive damages in both wrongful death and survival actions.

Punitive damages are not awarded in every case. They apply when the defendant acted with malice, willful disregard, or reckless indifference to others' safety. Punitive damages are not available against healthcare providers in malpractice cases or against government entities.

When punitive damages do apply, there is no dollar cap. In cases involving especially reckless conduct, such as a repeat drunk driver or a company that ignored repeated safety warnings, families may recover more than compensatory damages alone would allow. Compensatory damages are payments intended to cover concrete losses, such as medical bills, lost income, and funeral costs.

How Are Illinois Wrongful Death and Survival Action Proceeds Divided Among Family Members?

The personal representative of the estate files both the wrongful death and survival action claims. From there, the money flows differently depending on which claim it comes from.

Wrongful death proceeds go directly to the surviving spouse and next of kin. Courts do not divide the money equally. Instead, they consider each family member's relationship to the deceased and the losses they suffered. A family member may recover damages for grief and loss of companionship even if they were not financially dependent on the deceased.

Survival action proceeds are paid out into the estate first. Before that money reaches any family member, it must go through probate, which is the court process used to settle a deceased person's debts and distribute their assets.

During probate, creditors have six months to file claims. The estate pays its own costs first, then any valid debts. Only after those are resolved does the remaining money go to the beneficiaries. That process can take well over a year.

Frequently Asked Questions About Illinois Wrongful Death Claims and Survival Actions

How long do I have to file a wrongful death claim in Illinois?

In most cases, you have two years from the date of death to file and missing that deadline can bar your family from any recovery.

What if the deceased was partly at fault for causing their own death?

Illinois follows a modified comparative fault rule. If the deceased was partly at fault, damages may be reduced by that percentage. Your family can still recover as long as the deceased was not more than 50 percent responsible.

Will a criminal case get my family financial compensation?

A criminal case is brought by the government. It may punish the defendant, but it does not replace a civil wrongful death claim for damages.

Contact a Lombard, IL Wrongful Death Attorney for a Free Case Evaluation

If you lost a family member due to someone else's negligence, the Naperville, IL wrongful death lawyers at Mevorah & Giglio Law Offices can help. We offer Saturday and evening appointments to work around your schedule. With offices in Lombard, Bloomingdale, and Naperville, we make it easy to meet with us for a free case evaluation. Call 630-932-9100 today.