Claims for Grief and Sorrow in Illinois Wrongful Death Cases

Top-Rated Illinois Wrongful Death Attorneys Representing Families Who’ve Lost a Loved One

When a family loses a loved one because of someone else’s negligence or wrongful act, Illinois law allows the survivors to seek more than just economic losses. Juries may also compensate the surviving spouse and next of kin for their grief, sorrow, and mental suffering, the real human toll of the death.

At John J. Malm & Associates, we understand that nothing is more devastating than the unexpected loss of a loved one. For more than 25 years, our team has represented families across Illinois in wrongful death cases, helping them pursue justice and financial security in the face of tragedy. We know that no lawsuit can ever replace the person you have lost, but Illinois law allows surviving family members to recover for the very real emotional harm caused by that loss, including their grief, sorrow, and mental suffering. Our experienced Illinois wrongful death lawyers approach these cases with compassion and determination, working to hold negligent parties accountable and to secure meaningful compensation for the families we serve.

“When a family loses a loved one, the grief and sorrow they experience are immeasurable. At John J. Malm & Associates, our role is to stand beside families during their most difficult time, to seek justice on their behalf, and to make sure their voices are heard in court.” – John J. Malm, Naperville wrongful death attorney

The Legal Foundation: Illinois Wrongful Death Act

Illinois’ Wrongful Death Act (740 ILCS 180) is the primary statute that governs claims arising from a death caused by another’s wrongful act or neglect. The suit must be brought by the personal representative of the deceased, but for the exclusive benefit of the surviving spouse and next of kin. In 2007, the legislature amended Section 2 to expressly authorize juries to award damages for “grief, sorrow, and mental suffering” in addition to pecuniary losses. In 2023, the Act was further amended to clarify that punitive damages may be available in certain wrongful death cases.

Summary:

• The wrongful death case is brought by the estate’s representative, but the beneficiaries are the surviving spouse and next of kin.
• The jury may award “fair and just compensation” for pecuniary injuries (financial losses) and for grief, sorrow, and mental suffering experienced by those beneficiaries.
• In actions filed on or after August 11, 2023, punitive damages can also be available when applicable.

Grief and Sorrow vs. Other Non-Economic Damages

“Grief, sorrow, and mental suffering” are distinct from “loss of society,” a long-recognized category of wrongful death damages in Illinois that compensates for the loss of love, companionship, and mutual benefits of family life. Illinois courts have explained and developed loss-of-society damages for decades, with the Illinois Supreme Court’s decision in Bullard v. Barnes, 102 Ill.2d 505 (1984).

Illinois’ Pattern Jury Instructions help courts and juries apply these concepts at trial. The Wrongful Death Damages instruction expressly references grief and sorrow as compensable elements, and the separate “society” instruction defines that term (love, affection, companionship, guidance, etc.).

Who Can Recover for Grief and Sorrow in a Wrongful Death Case?

The statute makes clear that the surviving spouse and next of kin are the intended beneficiaries. “Next of kin” is defined to include adopted children and adopting parents (treated as natural relations), ensuring equal treatment in distribution. The court, not the jury, ultimately allocates the award among beneficiaries based on each person’s percentage of dependency on the decedent.

Key eligibility points:

• Personal representative files the lawsuit, but beneficiaries recover the damages.
• Spouse and next of kin may recover grief and sorrow damages.
• The trial judge holds a hearing and allocates each person’s share according to dependency.

What Must Be Proven in Grief and Sorrow Claims?

Illinois law does not impose a rigid checklist to prove grief and sorrow. Instead, the jury considers the totality of the evidence and awards “fair and just” compensation. The Illinois Pattern Jury Instructions and case law provide practical guidance on relevant factors.

Useful evidence to support grief and sorrow claims

• Testimony from family members about the emotional impact of the death
• Friends’ and coworkers’ observations of changes in mood, behavior, or daily functioning
• Therapy or counseling records and testimony from treating providers (where appropriate)
• Journals, letters, messages, or social media posts contemporaneous with the loss
• Milestones missed (e.g., graduations, weddings, births) and the decedent’s role in family life
• Cultural and family traditions that underscore the depth of the relationship
• Expert testimony (e.g., psychology or psychiatry) in complex cases to explain grief reactions

These categories align with what juries are told to consider under the pattern instructions (for example, the relationship between the decedent and survivors and the presence of grief and mental suffering).

How Grief and Sorrow Fit with the Rest of the Wrongful Death Damages

Wrongful death claims typically include multiple damage components:

• Pecuniary losses (financial contributions the decedent would have provided, services, etc.).
• Loss of society (love, companionship, guidance).
• Grief, sorrow, and mental suffering (the beneficiaries’ emotional distress caused by the death).
• Punitive damages (in limited circumstances for conduct showing willful and wanton disregard, except where prohibited).

Illinois courts also recognize a separate Survival Act claim (brought by the estate to recover the decedent’s own damages before death, such as conscious pain and suffering), which is distinct from the survivors’ wrongful death damages. (Survival claims are frequently brought together with wrongful death claims.)

Statute of Limitations (and Important Exceptions)

In most cases, a wrongful death action must be filed within two years of the death. Illinois provides extended deadlines for deaths resulting from certain criminal conduct. These extensions apply only to the individual criminal defendant; they do not extend limitations periods against other defendants.

Distribution of the Wrongful Death Award

Even though the jury returns a single lump-sum verdict, the court allocates the recovery among the surviving spouse and next of kin based on their respective dependency on the decedent. The judge conducts a hearing to determine those percentages and then calculates each beneficiary’s share, taking into account any reductions for comparative fault.

Practical Tips for Proving Grief and Sorrow

Because grief and sorrow are deeply personal, presenting them respectfully and credibly is essential. Consider organizing the evidence around the story of the family and the role of the decedent.

Consider gathering:

• Family calendars and photos showing traditions, routines, and milestones
• School, extracurricular, or caregiving records highlighting the decedent’s involvement
• Statements from community members (coaches, clergy, mentors) describing the loss’s impact
• Therapy/counseling records (where privilege is waived intentionally and strategically)
• Expert context when reactions are severe or complicated (e.g., complicated grief)

At trial, expect:

• A jury instruction that identifies grief, sorrow, and mental suffering as compensable components in addition to pecuniary loss.
• A separate instruction defining “society” (love, affection, care, companionship, guidance, and protection).
• A verdict form that may list grief and sorrow and loss of society as distinct line items, depending on the court’s preference and the pattern verdict forms in use.

Grief and Sorrow’s Relationship to Loss of Society

Illinois recognized loss of society damages before the 2007 amendment that added grief and sorrow. Cases in Illinois have addressed the scope and availability of non-economic recovery for survivors (such as parents and spouses) long before the legislature expressly included grief and sorrow in the statute. Today, juries can award both categories when supported by the evidence: the relational loss (society) and the emotional experience (grief, sorrow, mental suffering).

Frequently Asked Questions about Grief and Sorrow Claims

1) Are grief and sorrow damages “automatic” if we win the case?

No. The jury decides whether the evidence supports them and what amount is “fair and just.” The instructions identify grief, sorrow, and mental suffering as permissible elements, but the credibility and specificity of the evidence drive the outcome.

2) Can adult children recover for grief and sorrow?

Yes. The beneficiaries are the surviving spouse and next of kin, which includes adult children and (by statute) adopted children/parents on an equal footing. Allocation depends on dependency, not age alone.

3) How is the money split among family members?

The judge allocates the award among the spouse and next of kin in proportion to their dependency on the decedent, after considering any comparative-fault reductions.

4) What is the deadline to file?

Generally two years from death, with specific extensions for homicides and certain violent crimes (including a one-year-after-final-disposition window in criminally charged cases). These extensions apply only to the alleged perpetrator, not other defendants.

5) Are there caps on grief and sorrow damages?

No general caps apply in Illinois wrongful death cases. Illinois Supreme Court decisions invalidated earlier damages caps, including in medical malpractice reform attempts.

Sample Case Themes That Commonly Support Grief and Sorrow

• Sudden death with no chance to say goodbye, amplifying trauma and shock
• Loss of a caregiver for minor or dependent children affecting day-to-day life
• Loss of a family “anchor” (mentor, guide, or emotional support)
• Holidays and milestones experienced differently (or avoided) because of the loss
• Observable behavioral changes (sleep disturbances, anxiety, depression) corroborated by lay witnesses and providers

These themes align with factors juries may consider under Illinois instructions and case law addressing non-economic loss.

Contact the Top-Rated Illinois Wrongful Death Lawyers at John J. Malm & Associates

If your family is coping with the wrongful death of a loved one, you do not have to face the legal process alone. At John J. Malm & Associates, we will take the time to listen to your story, explain your rights, and guide you through every step of your claim. Our dedicated Illinois wrongful death attorneys are committed to helping families obtain justice and fair compensation for their grief and sorrow. Contact our office today for a free, confidential consultation. Let us help you seek accountability and begin the path toward healing.