When someone dies because of the negligence of another, their loved ones can bring a lawsuit to recover damages for both injuries to the person who died (“decedent”) as well as the grief suffered by the family members of the decedent. These lawsuits are generally referred to as “Wrongful Death” lawsuits, but there are actually two different causes of action that family members can bring to recover damages.
Wrongful Death v. Survival
A survival action is a lawsuit brought by a representative of the decedent’s estate to recover damages for injuries to the decedent. These injuries could include pain and suffering, recovery for medical bills or lost wages and any other injury the decedent may have sought recovery for had they survived.
A wrongful death action, on the other hand, seeks compensation to the family members of the decedent for the losses they suffered as a result of the decedent’s death. The damages may include the grief and sorrow suffered by these family members. Many times, the representative will file a lawsuit including claims for both survival and wrongful death.
For our purposes, the major difference between a survival action and a wrongful death action is that the representative of the estate must open a Probate case in court to file a survival action.
Survival Actions in Probate Court
In previous blog posts, we have discussed probate court and the representative’s role in administering estates. Before the personal representative can file a survival action, a probate estate must be opened. If the decedent had a Will, the Will must be admitted to probate and the same process for opening the estate would apply as if there was no survival action. Once the probate estate is open, the attorney can file the survival action in the civil court.
During the probate administration, the representative of the Estate (Administrator or Executor) will collect the decedent’s assets, send notice to creditors, and otherwise perform the typical steps of administration. Once a settlement or verdict is reached in the survival action, the settlement must be approved by the court and then the probate judge will approve distribution pursuant to the Will, if any, or the Illinois rules of descent.
Some Considerations
It is important to keep in mind that when opening a probate case to pursue a survival action, the estate is still subject to creditors’ claims and medical liens. If the potential settlement may exceed the value of such claims, it is important to speak with an attorney to determine if it is worth it to file the survival action.
If you have questions about probate, estate planning, or elder law, contact attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 ext. 2 for a free consultation.