If a spouse or family member dies, who can bring the wrongful death lawsuit against the at fault party? and how soon must we file the case?
Under the law certain classes of relatives can bring a wrongful death action on behalf of the decedent. Certain relatives or “classes” have priority over others. No matter which class of relatives formally brings the case, oftentimes many relatives are involved as witnesses to testify about the decedent’s life and the effect their death has on the family. All relatives must stand together and not allow differences to compromise the case. If there is dissension between relatives they must put that behind them for the sake of the wrongful death case and getting some justice for the decedent.
Only one action may be brought, so if there are multiple people in any one class that pursues a death case, then their cases must be brought together as one case.
The Illinois statute requires that the court appoint a personal representative of the estate of the decedent or a representative to bring the death action. The court determines the amount of the settlement or judgment distributed to the spouse or next of kin based on financial dependence on the decedent. Therefore, in Illinois a representative is appointed to be named in the lawsuit, however, the court must approve the settlement or judgment distribution to the various next of kin. The factors will include age, degree of relation, and amount dependent on the decedent, and any other special considerations.
It is important for the surviving spouse and next of kin to agree early on in the case how the proceeds should be divided. This will prevent infighting that could compromise the liability portion of the case and even the proceed distribution by the judge. In most cases, if the relatives have agrees on a distribution method, the court will approve unless there is something clearly unfair about it, such as taking advantage of a child by not giving a fair proportion to them.
The case must be filed within a certain amount of time after the death, this is referred to as the statute of limitations. If the case is not filed in time the cause of action is lost forever, with very few exception that toll or delay the running of the statute.
In Missouri the statute of limitations is typically 3 years from the date of the death. Additionally, this 3 year statute trumps the Missouri medical malpractice statute of limitations of 2 years from the act of negligence. So if a relative dies as the result of medical in Missouri, the family has 3 years to file a wrongful death lawsuit. If medical malpractice does not result in death, then the statute of limitations is only 2 years.
In Illinois the statute of limitations is 2 years form the date of death. This is the same length of time for medical malpractice claims as well. Therefore, a medical mistake case in Illinois must be filed within 2 years regardless if it results in death or not.
Our St Louis based law firm handles death cases in both Illinois and Missouri. Call us for a Free Consultation at (314) 863-0500 or contact us online.