Tuesday, May 11, 2010

Wrongful Death Actions and CREDITORS

I was recently asked about one of the nuances of the Wrongful Death Act.  The situation was as follows: The decedent had a significant amount of debt, and the family wanted to bring a wrongful death claim.  The question was: would the decedent's creditors have a right to recover under the Wrongful Death Act?

The Illinois Wrongful Death Act states:

Sec. 1. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony

740 ILCS 180.

As I have stated in previous posts, the Wrongful Death Act is a statutory creation that provides the surviving spouse and next of kin with a right to recover for the loss of the decedent.  Section 2 of the Wrongful Death Act states: "the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person."

A. This means that any recovery is not treated as part of the estate of the deceased; and

B. This means that the decedent's creditors cannot touch any amounts recovered in a Wrongful Death action.

At The Law Offices of Adam J. Zayed, P.C., our attorneys are experts in recovering the compensation families are entitled to in the event of a catastrophic injury or wrongful death

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