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Can a Family Member Be Sued for Wrongful Death in Illinois?
When a loved one dies due to someone else’s negligence, the family often seeks justice by filing a wrongful death lawsuit. But what happens if the person allegedly responsible for the death is a family member? This situation raises difficult emotional and legal questions. In Illinois, the answer is yes—a family member can be sued for wrongful death under certain circumstances. These cases are rare, but they do happen. In this blog, we explore the laws governing wrongful death in Illinois, whether and when family members can be liable, and what factors courts consider in such claims.
Understanding Wrongful Death in Illinois
Under the Illinois Wrongful Death Act (740 ILCS 180/), a wrongful death lawsuit may be filed when a person dies due to the “wrongful act, neglect or default” of another. The action is similar to a personal injury claim, except the injured person is deceased, and the lawsuit is brought by a representative on behalf of surviving family members.
Who Can File a Wrongful Death Claim?
According to the statute, the personal representative of the deceased’s estate files the lawsuit. This is usually a close relative—such as a spouse, parent, or adult child—appointed by the probate court. The damages recovered are for the “exclusive benefit” of the surviving spouse and next of kin.
What Damages Are Available?
Recoverable damages include:
- Loss of financial support
- Loss of companionship, guidance, and care
- Grief and mental suffering of surviving kin
- Funeral and burial expenses
These damages are distributed to next of kin based on their level of dependency on the deceased.
Can a Family Member Be Held Legally Responsible?
While it may seem unusual or even morally troubling, there are circumstances where one family member may be legally responsible for the wrongful death of another. Illinois law does not automatically shield someone from civil liability just because of a familial relationship.
No Family Immunity for Wrongful Death in Illinois
Historically, many states—including Illinois—recognized the doctrine of intra-family immunity, which prevented lawsuits between close relatives. However, this doctrine has been largely abolished in Illinois for personal injury and wrongful death actions.
Common Scenarios Where Family Members May Be Sued
Although these cases are uncommon, here are a few real-life examples where Illinois law allows wrongful death claims against family members:
1. Car Accidents Involving Family Members
Suppose two siblings are in a car, and one is driving recklessly and causes a fatal crash that kills the other. In this scenario, the deceased’s estate could file a wrongful death claim against the sibling-driver. In fact, many auto insurance policies will still cover such claims, even if the defendant is a family member.
2. Negligent Supervision or Medical Neglect
If one family member was responsible for the care of another—such as a parent caring for a disabled adult child or vice versa—and the caretaker’s negligence led to death, a wrongful death claim may be pursued.
Illinois courts have upheld such claims in situations where the person had a duty of care and failed to act reasonably under the circumstances.
Legal and Practical Considerations of Suing a Family Member for Wrongful Death
While Illinois law allows for wrongful death claims against family members, these cases raise serious legal and emotional concerns.
1. Insurance Coverage
Most wrongful death settlements and verdicts are paid by insurance policies. If the negligent family member was covered by homeowners, auto, or umbrella liability insurance, the plaintiff may be able to recover from the insurer.
However, insurance companies may exclude coverage for intentional acts, and many policies have language limiting coverage when one insured harms another insured. This often leads to coverage disputes.
Illinois courts have found that intentional acts exclusion barred coverage where an insured intentionally killed another insured family member.
2. Probate and Conflicts of Interest
If the defendant is also a potential heir or beneficiary of the deceased’s estate, conflicts of interest may arise. Illinois probate courts may remove or restrict such individuals from serving as the estate’s representative.
The court may appoint a special administrator or guardian ad litem to avoid self-dealing or bias.
3. Emotional Toll and Family Dynamics
Even if legally viable, suing a family member for wrongful death is often emotionally taxing. Survivors may feel conflicted about filing suit, especially if the incident was accidental or if the defendant is a minor or has their own children.
Courts and attorneys must navigate these cases with sensitivity, balancing the interests of justice with the family’s grief and emotional needs.
Statute of Limitations for Wrongful Death
In Illinois, wrongful death claims must generally be filed within two years of the decedent’s death. However, some exceptions apply:
- If the death resulted from a violent intentional act (like murder), the statute of limitations may be tolled until the criminal case concludes.
- For minors or persons under legal disability, the time to file may be extended.
It’s important to speak with an experienced Illinois wrongful death attorney early to preserve your rights and ensure proper legal procedure is followed.
What Happens If the Defendant Dies?
If the family member allegedly responsible for the death also dies in the same incident, you may still file a wrongful death claim against their estate. Illinois law allows lawsuits to proceed against a deceased person’s estate under 735 ILCS 5/13-209.
For example, if a uncle accidentally causes a car crash that kills his nephew and also dies in the crash, the father of the deceased child may bring a wrongful death claim against the uncle’s estate for the death of his child.
Can Parents Be Sued for the Death of Their Children?
Yes. Although rare, Illinois courts have allowed claims where a child dies due to a parent’s negligence. In such cases, courts carefully examine public policy, insurance issues, and duty of care.
Contact the Top-Rated Illinois Wrongful Death Lawyers at John J. Malm & Associates
While rare, wrongful death lawsuits can be brought against a family member in Illinois. These cases often arise in the context of car accidents or neglectful caregiving. Illinois courts no longer bar such lawsuits based solely on familial ties. The key issues are whether the family member owed a legal duty, whether they breached it, and whether that breach caused the death.
Filing a wrongful death lawsuit against a relative is not a decision to take lightly. It requires careful legal strategy, clear communication with all parties, and, often, a deep understanding of family dynamics. But when justice and financial recovery are needed—especially for dependent survivors—it can be a necessary step.
If you’ve lost a loved one and believe a family member may be responsible, contact the experienced Illinois wrongful death attorneys at John J. Malm & Associates to explore your legal options. Our firm is here to help you navigate this challenging and sensitive process with compassion and professionalism.