Understanding Who Receives Wrongful Death Proceeds in Illinois

Short answer: In Illinois, wrongful death damages are distributed under the Illinois Wrongful Death Act to the decedent’s statutory beneficiaries (surviving spouse, children, and next of kin), not directly under the decedent’s will. However, a separate survival action belongs to the decedent’s estate and can pass according to the will or probate rules. This distinction matters when a claim is settled or when a judge allocates recovery between wrongful death and survival components.

Detailed answer — How wrongful death and estate claims differ under Illinois law

There are two different types of claims that often arise when someone dies because of another’s wrongful act:

Wrongful death claim: Brought on behalf of the decedent’s survivors for the pecuniary losses caused by the death (loss of financial support, services, etc.). In Illinois, the Wrongful Death Act controls who can recover and how damages are distributed. See the Illinois Wrongful Death Act at the Illinois General Assembly website: 740 ILCS 180/1 et seq. (Wrongful Death Act).
Survival action: Seeks to compensate the decedent (through the estate) for losses the decedent suffered before death (pain and suffering, lost wages, certain expenses). A survival action is brought by the personal representative and becomes part of the probate estate, which then is distributed according to the decedent’s will (if there is one) or under the Illinois Probate Act if there is no valid will. See the Illinois Probate Act: 755 ILCS 5/1-1 et seq. (Probate Act of 1975).

Practical effect

Because wrongful death damages are for the benefit of survivors and are governed by statute, a decedent’s will cannot generally redirect wrongful death proceeds to non-statutory beneficiaries. If the decedent’s will leaves everything to X but the decedent’s spouse and children are statutory wrongful death beneficiaries, those survivors have a statutory right to share in wrongful death recovery even if the will names different recipients.

By contrast, if the lawsuit includes (or is entirely) a survival action—damages that belong to the decedent—those funds become part of the estate and will be administered under the will or by intestacy rules.

Settlement and allocation matters

In many cases plaintiffs and defendants settle both wrongful death and survival claims together for a single lump sum. How the settlement is allocated between wrongful death and survival components can change who receives which portion:

If the settlement allocates an amount to a survival claim, that portion typically goes into the estate and will be paid according to the will or probate law.
If the settlement allocates amounts to wrongful death, those sums are paid for the benefit of the statutory beneficiaries and are distributed according to the Wrongful Death Act, not the will.

Courts often approve settlements and the allocation, and if allocation is contested the court may decide the distribution. Because allocation affects family members’ financial rights and tax/credit issues, getting clear documentation and court approval is important.

Who brings the action and who receives the money?

Under Illinois law, the personal representative (executor/administrator) typically brings wrongful death and survival actions on behalf of the estate and survivors. The wrongful death award (when finally distributed) is paid for the benefit of survivors named by statute. The survival action award becomes property of the estate.

Hypothetical example

Jane Doe died in a car crash. Jane’s will leaves her estate to her sister. Jane’s spouse and two children survive her. A lawsuit recovers $300,000. If the court or settlement allocates $200,000 to wrongful death and $100,000 to survival:

The $200,000 wrongful death portion is distributed for the benefit of Jane’s spouse and children under the Wrongful Death Act, not to the sister named in the will.
The $100,000 survival portion becomes part of Jane’s probate estate and is distributed under Jane’s will (to the sister) or under intestacy rules if there were no valid will.

When the will can matter

Because wrongful death distributions are statutory, a will cannot generally override those statutory distributions. But the will does control any survival-action recovery and the rest of the probate estate. Also, the personal representative—who is often named in the will—has procedural control to file suits and propose settlements, so the executor’s actions affect timing and allocation. If survivors and the personal representative disagree, the court may resolve disputes.

Key steps to protect your rights

If you’re a surviving spouse, child, or potential distributee or if you represent the estate:

Talk with an experienced Illinois wrongful death/estate attorney early. Allocation decisions and procedural steps can affect who ultimately gets what.
Preserve evidence and file suit promptly. Statutory deadlines apply to these claims; delaying can forfeit rights.
Carefully review any settlement documents. Make sure the allocation between wrongful death and survival is explicit and, when appropriate, seek court approval.
If you’re the personal representative, keep beneficiaries informed and document decisions about litigation and settlement.

Helpful hints

Know the difference: wrongful death = for survivors; survival action = for the estate.
The decedent’s will usually does not control wrongful death proceeds.
Settlement allocation matters — ask for a written breakdown and court approval when needed.
Identify all potential statutory beneficiaries early: spouse, children, next of kin.
Get legal help right away — courts apply statutory rules and timing is important.
Keep copies of medical, funeral, and financial records to support pecuniary-loss claims.
If parties can’t agree about allocation, a court can decide how recovery is divided.

Where to read the statutes

Read the Illinois Wrongful Death Act and the Probate Act (official text) on the Illinois General Assembly website:

Wrongful Death Act (740 ILCS 180/): https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2107&ChapterID=64
Probate Act of 1975 (755 ILCS 5/): https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1995&ChapterID=67

Important disclaimer: This article explains general Illinois law and should not be taken as legal advice. It is not a substitute for advice from a licensed Illinois attorney about your specific situation. If you have (or represent) a surviving family member or an estate, consult a licensed Illinois lawyer promptly.