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Jonathan Rosenfeld

March 2, 2023

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Grief-stricken families are often overwhelmed in the days and months following the loss of a loved one caused by others’ negligent or reckless actions. Families want justice when someone else was negligent or made a mistake or wrong choice.

The decedent’s estate and surviving family members have a legal right to file a civil wrongful death lawsuit seeking wrongful death compensation. However, the laws restricting the length of time can be complicated.

A personal injury attorney answered some of the most compelling Illinois wrongful death FAQs below to help families understand the law, limitations, and how settlements are paid out.

What is Wrongful Death?

Wrongful death is a legal theory based on another’s wrongful act involving intention or negligence that claims the life of the deceased person. Typically, the deceased person’s family members or estate can file a wrongful death lawsuit against the defendant (alleged party at fault), who can be held legally liable for the death.

Estates or family survivors can file a wrongful death claim in place of the victim who would have valid cases against the defendant.

Various situations that could result in wrongful death include:

  • Someone intentionally killed the victim
  • The victim died of medical malpractice
  • A negligent driver caused the car accident fatality
  • A negligent employer created an unsafe condition in the workplace that led to a fatality

How Are Wrongful Death Settlements Paid Out?

Typically, an insurance company providing liability coverage for the defendant will pay the plaintiff (estate or families) the negotiated settlement amount. The plaintiff might receive the total amount in one check minus expenses and attorney fees or monthly/yearly payments through a structured settlement.

If the party responsible for the wrongful death does not carry sufficient insurance coverage, they are held legally accountable and financially responsible for any settlement or judgment above the insurance policy limits.

In many cases, the courts may demand defendants pay all the plaintiff’s accrued legal fees to resolve the cases.

Who Can Sue For Wrongful Death?

The decedent’s estate or surviving family members have a legal right to bring a wrongful death action against the party responsible to compensate for the victim’s death.

In Illinois, for example, specific family members can file a wrongful death claim, including a spouse, parent, grandparent, child, guardian, and the deceased person’s estate representative.

In most wrongful death cases, a longtime companion or sibling cannot file a claim when their loved one has died from another’s negligence. The settlement check or jury trial award will likely contain sufficient financial compensation to pay for all expenses, including medical bills, hospitalization costs, lost wages, lost future earnings, pain, suffering, and funeral expenses.

How Do You Prove Wrongful Death?

Even the most experienced wrongful death attorney working on behalf of a decedent’s estate or surviving family can guarantee a successful outcome in a wrongful death lawsuit.

However, the lawyer might prove specific elements necessary to prove the cases, including:

  • The victim’s death is associated with the incident listed in the wrongful death claim
  • The victim’s death resulted from the negligence or intentional act of the defendant
  • The victim’s estate or surviving families have been directly affected by the decedent’s death
  • The estate and survivors have faced financial hardship due to the preventable death

Different states have varying eligibility rules and who can file a wrongful death lawsuit. In Illinois, for example, a spouse, parent, grandparent, child, guardian, and the deceased person’s estate representative can file a claim.

However, all necessary documents must be filed before the state statute of limitations expires to avoid giving up the right to file a compensation claim ever.

Who gets the proceeds from a wrongful death lawsuit?

State law governs a deceased person’s estate asset distribution, including financial compensation from a negotiated settlement or jury trial award. The surviving spouse could receive 100% of a negotiated settlement or jury trial award unless the decedent had children.

The claim’s proceeds would be divided evenly if the decedent had one child and a surviving spouse. The claim would be divided equally if the decedent has a surviving spouse and two children, or each family member receives a third of the total, and so on.

What is a Wrongful Death Lawyer?

Wrongful death claims can be complicated. Many families will hire a wrongful death lawyer to prove how and others wrongful acts or negligence led to their loved one’s death.

Typically, experienced personal injury lawyers handle a wrongful death case to ensure that the survivors are sufficiently compensated for all damages, including medical bills, hospitalization costs, lost wages, future lost earnings, pain and suffering, grief, and funeral/burial expenses.

Is a Wrongful Death Settlement Check Taxable?

The US Internal Revenue Service (IRS) guidelines show that a wrongful death settlement payment is nontaxable as long as the plaintiff receives compensatory damages. In some wrongful death cases, the jury will award punitive damages as a punishment to the person responsible for causing the death.

In those incidents, the IRS might tax that portion of the settlement. However, it is best to speak with a certified public accountant (CPA) or tax attorney to identify any tax repercussions when accepting settlement and jury award checks to pay for compensatory and punitive damages.

Where Does the Money Come From in a Wrongful Death Lawsuit?

Wrongful death claims are usually filed against the individual or business that caused the victim’s death, whether a car accident or a work accident. The case is usually resolved through a negotiated settlement or a jury trial award after the trial.

However, insurance companies that issued a liability policy to the defendant typically pay out the financial award to the victim’s estate representatives or surviving family members (spouse, children) who filed lawsuits. The insurance company will likely issue a check to cover the settlement amount or jury award up to the policy limit.

The defendant will be legally responsible for paying the plaintiff any amount that exceeds insurance policy limits.

Who Gets The Money In A Wrongful Death Lawsuit?

Grieving families who lost a loved one through negligence or intentional act have a right to file a civil wrongful death suit for compensation. The law identifies who is entitled to receive financial compensation in a wrongful death lawsuit based on their relationship to the decedent.

According to Illinois statute, specific individuals and the estate’s representative must file a legal claim within two years from when the death occurred. Lawsuits should identify the compensation amount sought by plaintiffs to resolve the case.

The court/jurors will likely award the plaintiffs damages of a specific amount, but not limited to, all associated hospitalization, medical, rehabilitation, and funeral/burial expenses.

The plaintiff should also receive an amount equal to the decedent’s income loss, and future lost earnings along with the victim’s suffering and the plaintiff’s pain, suffering, grief, emotional distress, and mental anguish due to losing a loved one.

The award/settlement money will be distributed by paying hospital, medical, and funeral costs and all the associated fees associated with filing and resolving a claim, minus attorney fees.

The plaintiff’s wrongful death attorney will likely receive 33% (one-third) of the total amount for building and settling the case. If the lawsuit must be presented in front of a judge and jury, the personal injury lawyer will likely take up to 40% of the total amount.

How Do You File Wrongful Death Claims?

Various factors must be considered to successfully resolve a wrongful death lawsuit, including filing the lawsuit in the correct court.

These factors include:

  • Identifying jurisdiction and standing – The potential plaintiffs must have the “standing” to file a civil lawsuit in the correct court.
  • Drafting a complaint – Written court documents are essential to filing a compensation complaint that complies with state tort law and clearly states the claim’s legal basis.
  • Determining the case’s worth – A reputable personal injury attorney can accurately determine the case’s value to ensure a successful outcome.
  • Building a compelling case – The evidence the plaintiffs bring to a negotiated settlement meeting or in front of a judge and jury will ensure the plaintiffs win the compensation they deserve.
  • Negotiating a settlement – Experienced negotiating skills and patience are crucial in resolving the case successfully
  • Taking the case to trial – If a negotiated settlement amount cannot be agreed upon, the plaintiff’s personal injury attorney will need to present the evidence at trial.

How Much Are Wrongful Death Cases Worth?

A wrongful death settlement’s actual worth is based on various factors and available evidence to prove the case. That said, most wrongful death settlements payout $500,000 or more on average.

Typically, a personal injury attorney working on behalf of the clients (plaintiffs) will determine the value of the wrongful death case based on a loss of income, companionship, life expectancy, lost future earnings, the victims suffering before dying, and the grief, suffering, and loss the survivor’s experience after losing a loved one.

Some wrongful death lawsuits that are settled for $1 million or more have been filed in federal or state court. A personal injury attorney can factor in the financial, pain and suffering, and grief-stricken impact that the death had on survivors to determine the level of compensation they deserve.

What Should Be Part of My Wrongful Death Settlement Agreement?

Determining the actual value of a wrongful death settlement depends on various factors. Lawyers cannot just identify an average settlement amount to determine what your wrongful death case is worth because no two claims are ever alike.

However, do not overlook expected losses that should be included in your claim, including:

  • Lost financial support – was your loved one a financial supporter in the household, or contributed financially in some way? Their death means the family will no longer receive their weekly paycheck or future earnings. Without additional funds in your negotiated settlement, your household will likely experience a dramatically reduced standard of living.
  • Lost household services – Did your loved one maintain the household, care for the children, or perform other domestic chores that require a replacement? Be sure to add the lost household services amount to ensure you can hire and pay another person in place of the decedent.
  • Loss of parental guidance – Did the loss of a loved one cause the loss of a guiding hand in providing the nurturing care of a parent to your children, affecting future opportunities and decisions? You can receive financial compensation for this loss for you and your children.
  • Loss of love, affection, and care – Did losing your loved one take away the companionship, care, love, and affection that you expected to share for years enjoining your dreams and hopes together? Losing them has created an unimaginable void in your well-being that will affect you physically, mentally, and emotionally for the remainder of your life.

How Long Does a Wrongful Death Lawsuit Take?

The process of resolving a wrongful death lawsuit can be lengthy due to the unique circumstances and available evidence to prove the case.

Some cases are settled quickly, taking only a few months to resolve, while others average one to four years, primarily if the wrongful death case must be heard in front of a judge and jury.

Surviving families filing a wrongful death claim without legal representation typically resolves your case as quickly. However, without a personal injury attorney, the insurance company is likely to present a low settlement offer that is significantly lower than the actual value of the wrongful death case.

Many families will accept a low offer due to the financial burden of losing the decedent’s weekly paycheck or the need to pay bills. However, both parties agreed that the settlement amount eliminates all other opportunities to obtain the additional compensation the family deserves.

Is It Better to Settle Out Of Court or Go to Trial?

Settling the case out of court is significantly faster, less expensive, and far more certain of the financial outcome. According to statistics, nearly 95% of all wrongful death lawsuits are settled out of court many months before the case would have ever gone to trial.

Avoiding a trial date and accepting a settlement agreement offers the plaintiff numerous advantages over litigating the claim in front of a judge and jury. Trials are more than just stressful but could have less predictable outcomes when jurors hear the evidence.

Even if the plaintiff successfully wins their case at trial, the defendant may appeal the case, which the process could take years. Additionally, settling the wrongful death case maintains the plaintiff’s privacy where the records are sealed, where presenting evidence in open court will make all personal information public record.

How Many Years Do I Have to File a Wrongful Death Lawsuit?

Each state has a specific time limit on how long the decedent’s estate representative and surviving families can bring a wrongful death compensation lawsuit. Using Illinois as an example, all eligible plaintiffs have two years to file for wrongful death damages after the death occurred.

Any eligible candidate that could bring a wrongful death lawsuit can lose their right if the statute of limitations has expired and will no longer be able to recover wrongful death damages.

How Can a Wrongful Death Accident Attorney Help My Case?

The loss you feel is unimaginable whether losing a loved one through another’s negligence or intentional act. At the time you are attempting to grieve and move on with life, you’ll likely find that filing a wrongful death lawsuit is overwhelming.

A wrongful death lawyer can provide the support you, your children, and your grieving family needs after tragically losing your loved one. The law firm can focus on your wrongful death case in gathering the evidence you need to build the most compelling case possible.

Turning over the legal aspect of your case to your attorney relieves the heavy burden of resolving your claim while allowing you to spend time with your family, and mourning through the healing process.

Your lawyer can ensure that a wrongful death case is resolved quickly and amicably without the need to present evidence to jurors and provide the money you need for medical bills, funeral costs, lost wages, future lost earnings, pain, and suffering.

Do You Have Additional Illinois Wrongful Death FAQ?

Contact our law firm today at (888) 424-5757 for a free consultation related to your legal rights and options for recovery. As with all of our personal injury cases, we only receive a legal fee when we can obtain a recovery for you.

Client Reviews

Jonathan Rosenfeld was professionally objective, timely, and knowledgeable. Also, his advice was extremely effective regarding my case. In addition, Jonathan was understanding and patient pertaining to any of my questions or concerns. I was very happy with the end result and I highly recommend Jonathan Rosenfeld.

- Michonne Proulx

Extremely impressed with this law firm. They took control of a bad motorcycle crash that left my uncle seriously injured. Without any guarantee of a financial recovery, they went out and hired accident investigators and engineers to help prove how the accident happened. I am grateful that they worked on a contingency fee basis as there was no way we could have paid for these services on our own.

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Jonathan helped my family heal and get compensation after our child was suffered a life threatening injury at daycare. He was sympathetic and in constant contact with us letting us know all he knew every step of the way. We were so blessed to find Jonathan!

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This lawyer really helped me get compensation for my motorcycle accident case. I know there is no way that I could have gotten anywhere near the amount that Mr. Rosenfeld was able to get to settle my case. Thank you.

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Jonathan did a great job helping my family navigate through a lengthy lawsuit involving my grandmother's death in a nursing home. Through every step of the case, Jonathan kept my family informed of the progression of the case. Although our case eventually settled at a mediation, I really was impressed at how well prepared Jonathan was to take the case to trial.

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