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Wrongful Death and Survival Claims Part 2

This is the second part of a two-part video, and we’re talking about survival claims and wrongful death claims in Illinois. Last time we talked about a general description of the two separate claims, because when we bring up a lawsuit for somebody or the family of somebody who was injured by another person’s negligence, but that then ended up passing away as a result of their injuries; we’re going to typically bring two claims, a survival claim  and a wrongful death claim. Those two claims are very different.

Last time we talked about who can bring those respective claims and the types of damages that can be recovered in each of those claims. Let’s talk about the subject of probate. The survival claim, the recovery in survival claim, goes into the probate estate, it is an asset of the probate estate. A wrongful death claim, goes outside the probate estate, it never goes into probate court a wrongful death settlement or recovery is governed completely by the circuit court in the court where we’re litigating the wrongful death claim the survival claim themselves.

The next question is who can recover in each types of claims? Again, very different. For a survival claim that is governed by the probate estate and the laws of probate and the estate beneficiaries are the ones who can recover in a survival claim. Whereas in a wrongful death claim, the wrongful death statue specifically sets forth who can recover and that is the close family members like a surviving spouse, children, they are called heirs or next of kin under the statue, and recovery in the wrongful death claim is also based on dependency, so how dependent was a particular heir on the decedent, that’s financial and emotional dependence.

Finally the question of whether either of these claims are subject to the decedent’s medical liens, a survival claim is subject to the medical liens of the decedent and also subject to all of the other claims of that decedent’s estate again, as I said the recovery under the survival claim goes into the person’s estate and is subject to all claims of the estate. Whereas a wrongful death recovery does not go into the probate estate, it is not subject to claims of the estate and it is also not subject to medical claims of the decedent because the recovery is not for medical expenses. If you’d like to discuss a survival claim or wrongful death claim please feel call our office to call myself or one of the other lawyers here. Stay safe and be well.

R.F. Wittmeyer

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