Those who are left behind after an Illinois wrongful death accident have a very natural concern about who will be receiving the money which will be paid as part of a settlement or judgment in a wrongful death suit. To some extent, that will depend on whether there is a will or not and whether we are talking about the wrongful death or survival portions of the case.
The money from the settlement which is allocated to the survival portion is an asset of the estate because it compensates the decedent for what he/she experienced prior to death. That means that where there is a will, the money must be distributed in accordance with the will. If there is no will, then the statute of intestate descent and distribution determines where the money will be distributed.
Under the Wrongful Death Act, the wrongful death portion of the case is brought by the estate for the benefit of the surviving next of kin. The term “next of kin” has a very specific meaning, and is narrower than many people would naturally believe. The term “next of kin” is determined by the statute of intestate descent and distribution, and under that statute, the “next of kin” depends on who survives the death:• If there is a spouse and/or child surviving, then the spouse and/or children are the next of kin;• If there is no child or spouse, but there are parents and/or siblings, then the parents and/or siblings are the next of kin;• Where there are no parents, children, siblings, or spouse, then other relatives may be deemed “next of kin”.
It is important to note that once a survivor is determined to be “next of kin,” other relatives who are at the next level do not get any right to recover, no matter how severe their losses are due to the death of decedent. For example, if a young man is killed in an Illinois car accident and leaves behind his mother and a child, the child is considered the next of kin under the Wrongful Death Act. His mother would not be considered “next of kin” under the Wrongful Death Act, and she would not be entitled to recover damages under the Wrongful Death Act for the death of her son.
The rule that limits the recovery to the “next of kin” often leaves survivors of wrongful death accidents confused and angry. This is especially true where there are parents who lose adult children and may be very dependent on them for assistance and companionship. Unfortunately, the application of the term “next of kin” in the Wrongful Death Act is very mechanical and sometimes yields results that many would consider unjust.