I just came up against the Illinois Wrongful Death Act in conjunction with a probate estate which I am handling and it left me more than a little confused as to what, if anything, fundamental fairness and justice had to do with this act.
A wrongful death act is brought against parties whose actions, intentional or negligent, brought about the death of another person. The most common are for medical malpractice and traffic accidents. The concept is that a person or persons whose bad actions caused or hastened the death of another person should pay damages. The question is, to whom? Illinois has made a bright-line rule on this and a large number of the cases on this statute involve the drawing of that line.
Here is how it works: if you are named an heir of the estate of the person whose life was lost, then you are in the case who MAY be made a beneficiary of the funds recovered in the wrongful death action. We read every day about court or jury awards of millions of dollars of compensatory damages. Many of those, the victim is still alive. That often means a bigger award because of the costs of caring for that person for the rest of their life. In certain countries in Asia, this has caused auto drivers who have hit someone, to go back and hit them again to make sure they are dead so the award will be less.
Once the negligent or evil have been punished monetarily, the court is then to hold a hearing on how the funds should be distributed. The Illinois Supreme Court said in a landmark decision that the hearing should not just be a pro-forma distribution per stirpes but must speak to how much that person depended on the lost parent or lost spouse. This is a really bad idea. We have all seen at funerals where the most weeping and wailing comes from a spouse who had at least emotionally abandoned the marriage long before and children whose crocodile tears should have been harvested to use in a Disney production. You know what I am talking about. Some Oscar-caliber acting in front of the judge. The concept of dependency is a very poor tool for measuring how the funds should be distributed. It is too nebulous and too subject to outright manipulation. The situation allows the fuzzy reasoning that if you were more dependent upon Mom during her long life and did not become independent adults contributing to society, you should get a bigger share of pie now.
Guess who doesn’t get a say in any of this: the deceased. Instead of making the cash payment an asset of the estate, where, if the deceased had a Will, then her or his wishes would be carried out, it bypasses the Probate Court despite the fact that the suit could not have been brought until a Probate Estate was opened.
In this case, the two daughters who had cared for the mother in her house and continued to do so for over a decade after the Will was written, were to receive 100% and the other children who had, for various reasons, failed to live up to her expectations as children, received nothing.
THE DECEDENT’S WISHES HAVE NO BEARING ON HOW THE FUNDS OBTAINED THROUGH HER PAIN AND SUFFERING AND EARLY EXIT FROM THIS WORLD ARE DISTRIBUTED. If the Law Division looks to the Probate Act for its eligible candidates, why not just turn over the proceeds to the Probate court to be distributed in accordance with the plan?
If the Executor of her Will had not had the foresight to open a probate estate, then there would have been no entity which had standing to act as Plaintiff in the Wrongful Death Suit. If she had not hired lawyers to prosecute the action, there would be no money. Now, the Probate Court has told her that because that money is outside of its perview, there is no money to reimburse her for filing fees, costs of letters, copies, transcripts or any of the five years time she spent pursuing the action. But for her, there would be no money, so the reward is a “tough luck, kid.”
The Law Offices of David Blocher is a specialty law firm serving Chicago, IL and the surrounding areas specializing in elder law, probate administration, and estate planning services. Our attorneys take a keen interest in each case and offer personalized and attentive services to every client. If you need legal assistance in any of these areas, please feel free to contact us at (312) 855-4477 or visit our website at http://www.blocher-law.com.