Understanding the Illinois Wrongful Death Statute of Limitations
In the immediate aftermath of losing a family member, filing a lawsuit is certainly not something a mourner is thinking about.
Instead, an individual who loses a loved one will likely be thinking about their grief, and perhaps the future, including what they will do without their partner, parent, or child.
While the idea of filing a lawsuit may be far from your mind, at the offices of VanDerGinst Law, we would like to offer a gentle reminder that the clock on the wrongful death statute of limitations is ticking. If you think that you have a claim, it’s important that you act quickly.
What Is a Statute of Limitations?
A statute of limitations refers to a limit on the amount of time that can pass before a party is barred from doing something, such as filing a civil lawsuit or bringing criminal charges against a defendant.
Statutes of limitations vary state by state, as well as case type.
How Much Time Do I Have?
If you have lost a loved one, it’s important that you have an understanding of the statute of limitations.
Illinois law sets forth how much time a party has to file a wrongful death suit after a loved one’s death.
As found in the Illinois Wrongful Death Act, 740 ILCS 180, all actions must be commenced within two years from the date of the day of death of the decedent.
Note that this is different from a personal injury claim, where the statute of limitations starts ticking from the date of the cause of action/when the injury occurred.
So, if a person suffers serious injuries in January but doesn’t die from those injuries until March, the clock on the statute of limitations would start in March, not January.
Full Episode Transcript
Welcome to Legal Squeaks. I am your host, Dennis VanDerGinst. And before we start on today’s topic, I want to remind you all, please subscribe to Legal Squeaks and click the like button on your favorite podcast platform.
It’s free, it’s easy and we’d be forever grateful. Today, I’m going to talk to you about an important legal deadline known as the statute of limitations. A statute of limitations is the law that sets the maximum amount of time that parties involved in a dispute have to initiate legal proceedings from the date of an alleged offense, whether that’s a civil or criminal offense. So in criminal cases, that’s the law that forbids prosecutors from charging someone with a crime that was committed more than a specified number of years ago.
In civil cases, it refers to the time frame in which someone may file a lawsuit against someone else. Failure to do so within that time frame can forever bar them from the right to do so. Ironically, the initials SOL are very appropriate because if you miss the deadlines outlined by the statute of limitations, you may also be pardon the language, but “shit out of luck” when it comes to getting your remedy for your legal problem. So that’s in a nutshell, pretty easy, right?
Well, if only that were the case. But as with many legal issues, there are variations and exceptions that often apply. For instance, there are different deadlines for criminal cases, depending upon whether they refer to state or federal charges. And obviously, they also differ depending on the nature of the charges that are alleged. But since the decisions as to prosecute prosecuting a criminal case generally rests with various state or federal prosecutors who evaluate whether any time limitations may apply. We’re not going to delve very deeply into the SOLs as they apply to criminal cases.
And we’re going to focus more on civil cases. The deadlines for civil cases depend on which state laws apply and the type of civil case. For instance, is it a contract case? Is it an injury case? Is it a medical malpractice case, etc.? In addition, there are sometimes exceptions that might be applied under certain circumstances, and these exceptions can either extend or shorten the requisite times to file. And there are also sometimes additional notice requirements must be met in order to pursue a legal remedy.
And what I mean by that is that in some cases, in some states, in addition with complying with a statute of limitations, perhaps you’re also required to serve notice of your potential claim to various parties. Or in other situations, situations you may need to exhaust other administrative remedies before you’re allowed to file a lawsuit. For instance, in Iowa, an injured person intending to pursue a Dram shop action–and that’s an action where one person is alleging that he or she was injured as a result of someone becoming over served and thus intoxicated–in those situations,
You–if you’re in Iowa–an injured person has to file a written notice with the appropriate party within six months of the date of the accident. And that’s a notice of their intention to file a lawsuit. It’s not an actual filing of a lawsuit, but if they fail to file that notice, their case may be dismissed even if they filed the lawsuit within the applicable statute of limitations. Likewise, in Iowa and other states, before being allowed to file a lawsuit against a state entity or a state employee, you must first submit the claim through an administrative process.
And if you don’t go through that administrative process first, again, your lawsuit, even if it’s timely, filed within the statute of limitations, might be dismissed. In most states and in most civil cases, the date which triggers the statute of limitations may also be delayed if the complaining party is under a legal disability at that at the time, it would have otherwise been triggered. For instance, in most if not all states a minors triggering date for the statute of limitations does not begin until they’ve attained their majority, at age 18.
So in a state like Illinois, where the statute of limitations for most personal injury cases, for instance, is two years, if the person who was harmed was a minor at the time of the injury, their statute of limitations would not accrue and therefore would not, it would not accrue until their 18th birthday and therefore it would not expire until two years after reaching their 18th–18th birthday. And these types of exceptions vary from state to state. Normally, also, they’re not only applicable to minor plaintiffs, but also those who are suffering from any legal disability.
Another exception, which sometimes applies to statute of limitations requirements is what’s known as the discovery rule. This often applies in the context of medical malpractice cases. And the way that works is to delay that triggering of the statute of limitations to the date that the plaintiff knew, or in the exercise of reasonable care, reasonably should have known of the injury and the negligence. This doctrine protects people in circumstances where they can’t discover, discover their injury until the statute of limitations has already run.
So, for instance, in the context of a medical malpractice case, sometimes a person’s unaware of the injury or the negligence until after that requisite time period. For instance, if it’s two years, perhaps they’re not aware beyond two years that they’ve even been injured. For example, it’s not that uncommon for surgical instruments or sponges to be left inside someone during a surgical procedure. That type of negligence can certainly cause injury or illness long after the procedure. And the plaintiff, the harmed person, may not even feel the effects of that negligence until after the statute of limitations would have already expired.
Therefore, it’s only reasonable that an exception and extension be applied when there was no reasonable way for the injured party to have known that they had been injured or understood the nature of the injury until after the deadline had passed. Statutes of limitations can also vary depending on the nature of the defendant. For instance, in some states, the statute of limitations is shorter if the defendant is a city or a county.
So for all of these reasons, if you have a potential legal case against someone, it makes sense to reach out to an attorney in order to ensure that you don’t miss your opportunity to pursue that case due to missing important notices or filing deadlines.
I hope this information was useful. I hope that you’ll never have to use it. Please check in to Legal Squeaks next week when we’ll discuss another important legal or consumer matter which may impact your daily life. If you haven’t already done so, please subscribe to Legal Squeaks on your favorite podcast platform. Also, please check out our other podcast, Uncommon Convos. And you can go to LegalSqueaks.Com to suggest topics for future episodes and to check out the video version of this and other episodes. Until then, when we see you next week,
Stay safe, and I love you all.
What Happens If I Don’t File a Lawsuit Within the Statute of Limitations?
If a wrongful death action is not filed within the required statute of limitations, then the claimant will be barred from recovery.
In other words, the two-year deadline is fixed; filing after the deadline will result in the court refusing to hear the case.
This is why it is so important to meet with a lawyer and start the process sooner rather than later.
Wrongful Death Damages
Before you start the process of filing a suit, you should learn more about the types of damages that are recoverable in such an action.
Damages are for the exclusive benefit of the surviving spouse of the decedent and next of kin.
With that in mind, the jury can award damages it deems to be “fair and just,” which might include compensation for loss of consortium, suffering, and mental anguish.
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