In Illinois, a wrongful death lawsuit can generally only be filed by the representative of the estate or the attorney acting for that representative.
However, in the case where a deceased person has no actual assets and their only item of value is the potential for a wrongful death lawsuit, the court can appoint a special administrator to commence the lawsuit.
Wrongful Death Lawsuits for the Benefit of the Family
Although the lawsuit is filed by the representative of the estate, the closest legal proxy for the deceased, the lawsuit is not intended to benefit the representative, it’s intended to benefit the family of the deceased, and the distribution of funds from the wrongful death lawsuit is controlled by law.
Compensation from a settlement or verdict in a wrongful death lawsuit will be paid “to each of the surviving spouse and next of kin of such deceased person in the proportion, as determined by the court, that the percentage of dependency of each such person upon the deceased person bears to the sum of the percentages of dependency of all such persons upon the deceased person.” In other words, you will receive compensation for the amount you relied on the deceased person for support.
Consider, for example, a man killed in an accident who has two brothers, a wife and two children. The brothers both live independently, but both relied on the man, one for advice and emotional support, while the other received periodic financial payments. The wife worked and shared expenses with her husband. In this case, the court might determine that the amount of dependency of each party was as follows:
- First brother (emotional support only): 5%
- Second brother (emotional and financial support): 10%
- Spouse: 50%
- Children: 100% each
The compensation might then be divided as follows: 2% to first brother, 4% to second brother, 19% to the spouse, and 38% to each child (percentages do not add up due to rounding).