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Who Can File a Wrongful Death Suit?

July 10, 2019
Tuite Law

Wrongful death lawsuits allow surviving family members to receive compensation after a loved one is killed wrongfully. These are very complicated lawsuits to bring, with many requirements that differ from those of a typical personal injury claim.

As a prominent Illinois personal injury law firm, one question we receive is, “Who can file a wrongful death lawsuit?” If the wrong person files the suit, then a judge can dismiss the case, so getting a correct answer is key. Below, we run through some of the basics of the law so you will have a better idea of your obligations.

The Personal Representative of the Estate Files a Wrongful Death Lawsuit


740 ILCS 180/2 states that the personal representative files the lawsuit. Every estate has a personal representative who represents the estate in probate court. If your loved one had a will, then he or she should have named a personal representative. Often, people name a spouse or child, but they could name anyone.

Find your loved ones will and identify the personal representative. He or she files a wrongful death suit in court. Of course, if there is a surviving spouse or children, they receive compensation, but they don’t file the paperwork in court to bring the claim.

What happens if your loved one did not leave a will? The probate court will need to appoint a personal representative. Usually, close family members are appointed.

Why Doesn’t the Prosecutor File the Lawsuit?

Wrongful death cases are civil cases, not criminal ones. The prosecutor will file criminal charges and, if convicted, the defendant can be sent to jail or sentenced to probation.

Monetary damagesWith a civil suit, the defendant must pay monetary compensation if he loses. He or she cannot go to prison.

Timelines for Filing a Wrongful Death Claim

If a lawsuit is not filed promptly, then a judge will dismiss the case. This has disastrous consequences, so the personal representative must move promptly.

740 ILCS 180/2(d) states that the personal representative has 2 years from the date of death to file the lawsuit. However, there is a different deadline if the death resulted from intentional violent criminal activity such as murder or manslaughter.

In these situations, a personal representative has five years from the date of death or within one year from the final disposition of any criminal case. If charges have been filed, you should follow the case closely, since it could affect the timing of your own civil suit.

Speak with a Rockford Wrongful Death Attorney

If you have any questions about when to file or whether you have a case, reach out to Tuite Law today. During this time of grief, the last thing you need is to try and figure out your legal obligations. We can handle all aspects of the wrongful death case and encourage you not to delay reaching out to us.

Tuite Law offers members of the public a free initial consultation, so there is no risk in contacting us.

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