Kreisman Law Offices Professional Corporation
Recently two Cook County Circuit Court judges, Judge Lynn M. Egan (Law Division) and Judge Mary Ellen Coghlan (Probate Division), developed an instructive PowerPoint program for Illinois lawyers, in an effort to clearly define the differences between wrongful death actions and survival actions in Illinois.
In a wrongful death act claim, the recovery would be for the exclusive benefit of the decedent’s surviving spouse and next-of-kin. If the wrongful death was immediate with no pain and suffering associated with it, a special administrator could be appointed as the case is being filed. No probate estate would be necessary.
However, the confusion begins when a wrongful death act claim and a survival statute claim are both present. When a survival action is available to a plaintiff, the judges concur that a probate estate must be set up for the benefit of the decedent’s estate. A survival action is like many personal injury cases in which there may be pain and suffering element to the case associated with the injury that later resulted in death. Where there is a portion of the recovery for damages related to pain and suffering by settlement or verdict, the sum associated with the survival action goes to the decedent’s estate, not to the next-of-kin or surviving spouse as it would if for the wrongful death action.
A special administrator may be appointed to prosecute the wrongful death claim only when two conditions are met: (1) the claim is the only asset of the decedent’s estate; and (2) no petition for letters of office has been filed for the decedent’s estate in the probate court.
Under the Wrongful Death Act, 740 ILCS 180/2.1, only someone “entitled to recovery” may serve as special administrator.
However, in the survival statute claim, only a court-appointed administrator or executor of the decedent’s estate may bring the claim in his/her/its names for damages under the Survival Statute. That person who brings the action must be appointed by the Illinois Probate Court. Burris v. Cullinan, U.S. Dist. Ct., Central District of Illinois, No. 09-3116 (2009).
A special administrator is not the same as a personal representative of a probate estate. A wrongful death special administrator is not allowed to prosecute a survival action. Therefore, the appointment as special administrator for a wrongful death claim works only for that kind of case. In other words, the special administrator appointed by the court to prosecute a wrongful death claim cannot prosecute a different cause of action with the same case.
In a case where one of the parties dies during the pendency of a case, if it was the plaintiff, a motion to appoint a special administrator must be done. Notice to the decedent’s heirs or legatees that the plaintiff is seeking to substitute a special administrator is required. Then the court must approve the appointment of the special administrator in order to proceed.
In a Wrongful Death Act claim, settlements and jury verdicts are to be treated the same way as other civil cases; however, the presiding judge decides distribution based on the degree of dependency of the decedent. The jury does not decide distribution. Therefore, Illinois jury verdict forms should not contain separate lines listing each survivor of the decedent in a wrongful death case.
According to a 2011 case, Baez v. Rosenberg, 409 Ill.App.3d 525 (1st Dist., 2011), where a decedent did not die instantly at the time of the occurrence, but survived for a time and there was a an accompanying survival statute claim, a probate estate must be opened in advance of filing a lawsuit.
In a case where the wrongful death action is settled, but the recipients are either minors or disabled persons, a probate court will oversee distribution to a guardian appointed by it in the probate division where the minor or disabled person resides. In a case of a minor, the amount distributed to a minor would have to exceed $10,000 to require a guardian appointment for the benefit of the minor. If the net amount to the minor is less than $10,000, the settling court can authorize disbursement on behalf of the minor and/or disabled person.
Lastly, when a cause of action is settled, the judge presiding is the one that finds the settlement to be “fair and reasonable,” not the probate judge. However, if there is no lawsuit pending, a probate court may be required to approve a settlement.
Kreisman Law Offices has been handling wrongful death and survival action cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Downers Grove, Elgin, Elmhurst, Evergreen Park, Evanston, Forest Park, Lincolnshire, Homewood, Long Grove, Midlothian, Glenview, Chicago Ridge, Chicago (Ukrainian Village, University Village, Uptown, Streeterville, Roscoe Village) and Des Plaines, Ill.
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