What is Wrongful Death?
By: Patrick G. King of King Law Firm, LLC (Alton, IL): Personal Injury and Trial Lawyer
Wrongful Death claims or cases arise in matters involving auto/car accidents, semi-truck/tractor trailer accidents, products liability, medical malpractice, mesothelioma or asbestos, nursing home negligence, and other personal injury cases when someone dies from negligence or other misconduct.
Who files the Wrongful Death claim or case?
The Wrongful Death action (claim or case) is filed by a decedent’s (deceased person) personal representative (executor or administrator) to recover for the pecuniary losses and damages suffered by decedent’s surviving spouse or family members (“next of kin”) or both resulting from the wrongful death against a wrongdoer. In the same case, a survival action may be brought in behalf of the decedent’s estate to recover for personal injuries or damages sustained by the decedent - which had been caused and suffered by the decedent during his or her lifetime before death.
Who is entitled or allowed to receive compensation under the Illinois Wrongful Death Act?
Under the Wrongful Death Act, recovery (compensation) is for the exclusive benefit of the surviving spouse and “next of kin” of the deceased person. Recovery is not to be treated as part of the decedent’s estate. In other words, recovery is designed for the surviving spouse and “next of kin” without taking into consideration the content of any estate planning documents, such as a Will or Trust.
The term “next of kin” means those blood relatives, who are in existence at the time of decedent’ death. “Next of kin” are the same people, who would inherit property or belongings, if the decedent died without a Will or Trust. “Next of kin” includes an adopting parent and an adopted child. They are treated the same as a natural parent and natural child.
What can be awarded or given in Wrongful Death?
In every case, the jury may award damages (monetary compensation) as the jury deems fair and just to the surviving spouse and “next of kin.” Damages may include grief, sorrow, and mental suffering. Wrongful Death actions seek to protect the legal rights of survivors to be compensated for losses due to the death of a spouse or family member or both. The purpose is to provide eligible persons with benefits that would have been received from the continued life of the decedent, if the decedent had not died wrongfully – not from natural causes.
What is the deadline to file a claim or case for Wrongful Death?
A wrongful death action must be brought or filed within two (2) years from the date of the decedent’s death. This deadline is known as the Statute of Limitations. Failure to timely file a claim or lawsuit will result in an absolute bar or prevention of any recovery or compensation. In other tort or personal injury cases, statutes of limitations exist.
How is the award, settlement, or verdict allocated and distributed?
After verdict or settlement, the Trial Court Judge has discretion to allocate compensation among the surviving spouse and “next of kin.” At a separate hearing, the Judge may listen to testimony, review evidence, hear arguments, and assess the credibility of each witness or entitled person. The Judge must determine the exact allocation to each entitled person based on the percentage of “dependency” of each person to the deceased person. No mathematical formula or calculation exists to determine the amount of money to be awarded to each person. Although there is not an exact legislative definition of the term, “dependency,” it implies the presence of a previously existing relationship as well as support and loss of society. Instead of a hearing, all eligible persons may reach an agreement regarding how to allocate and distribute the wrongful death proceeds.
If you believe that you have a wrongful death claim or case, then contact Patrick G. King of King Law Firm, LLC (Personal Injury and Trial Lawyer) at (618) 462-8405 today to schedule a free initial consultation.
By reading this article or blog alone, it does not establish or create an attorney-client relationship.
About the Author:
Patrick G. King, a trial lawyer, practices in the areas of Personal Injury (Automobile/Car Accidents, Bike/Motorcycle Accidents, Construction Site Accidents, Dog Bites, Dram Shop, Injuries to Children, Motorcycle Accidents, Negligence, Premises Liability, Products Liability, Trucking Accidents/Semi-Tractor Trailer Accidents, Torts, and Wrongful Death), Criminal Defense (Felony, Misdemeanor, DUI, and Traffic), and Driver's License Reinstatement cases before Illinois Secretary of State at Formal Administrative Hearings. Patrick is licensed to practice law in Illinois and Missouri and actively represents clients in the following counties, Madison County, IL, Jersey County, IL, St. Clair County, IL, Macoupin County, IL, Montgomery County, IL, Greene County, IL, Calhoun County, IL, Bond County, IL, and Monroe County, IL. Patrick also represents clients throughout the St. Louis Metropolitan Area and Missouri.