755 ILCS 5/27-6: Surviving Claims, Deadlines, and Recovery

The Illinois Survival Act, codified at 755 ILCS 5/27-6, keeps certain lawsuits alive when a party to the case dies. At common law, most personal claims died with the person who held them, which meant a wrongdoer effectively got off the hook if the injured person did not survive. The statute closes that gap by listing specific categories of claims that continue through the deceased person’s estate, so a representative can step in and pursue or defend the case.¹

Which Claims Survive Under the Act

The statute preserves claims beyond those that already survived at common law. The categories it adds are:

Replevin actions to recover specific personal property held by someone else.
Personal injury claims, including punitive damages when applicable. Slander and libel are the notable exception — defamation claims die with the person.
Property damage claims, including wrongful holding or conversion of personal property.
Actions against public officers for misfeasance, malfeasance, or nonfeasance, and against their deputies for misconduct.
Fraud or deceit claims.
Dram shop claims under Section 6-21 of the Illinois Liquor Control Act.

The statute cuts both ways. If the injured person dies, the estate can continue prosecuting the claim. If the person who caused the harm dies, the claim can be brought against that person’s estate.¹

How This Differs From a Wrongful Death Claim

These two actions get confused constantly, and the distinction changes who gets the money.

A survival action recovers what the deceased person lost between injury and death. The damages belong to the estate and pass under the will or intestacy laws. A wrongful death claim under 740 ILCS 180 compensates the surviving spouse and next of kin for their own losses after the death, including grief, lost financial support, and loss of companionship. Those damages go directly to the family members and never touch the estate.²

The practical consequence shows up when creditors are involved. Survival proceeds flow into the estate and must satisfy creditor claims before reaching heirs. Wrongful death proceeds bypass the estate entirely and are shielded from the deceased person’s debts. Estates often file both actions together after a fatal injury.

What the Estate Can Recover

A survival claim targets the losses the person experienced while still alive. The main damage categories:

Conscious pain and suffering. The estate must show the person was actually conscious of pain during the interval between injury and death. Instant death means nothing to recover here.
Medical expenses incurred before death.
Lost earnings for the period the person was injured but alive.
Loss of normal life, meaning disability or disfigurement the person experienced before dying.
Property damage from the incident.

Punitive damages are available “when applicable,” but three carve-outs remove them entirely. No punitive award is allowed in a healing art malpractice action, in a legal malpractice action against an attorney, or against the State, a unit of local government, or a government employee acting officially. The statute also preserves the applicability of Section 2-1115 of the Code of Civil Procedure and the Local Governmental and Governmental Employees Tort Immunity Act.¹

Deadlines for Filing

Most survival claims fail on timing. The deadline depends on whether a lawsuit was already pending when the death occurred.

Injured Person Dies Before Filing

If the person holding the claim dies before the statute of limitations runs, the estate’s representative can file before the original deadline expires or within one year of the death, whichever is later. The general personal injury limitations period in Illinois is two years from the incident, so the representative needs to identify the later of the two dates.³

The Wrongdoer Dies Before Suit Is Filed

If the defendant dies before the limitations period expires, the claim can be brought against the defendant’s personal representative within the original limitations period or within six months after the defendant’s death, whichever is later.³

A Party Dies During a Pending Lawsuit

If the case is already active when someone dies, a motion to substitute must be filed within 90 days after the death is suggested of record. Miss that window and the court can dismiss the action as to the deceased party. The clock starts when the court is formally notified of the death, not on the date of death itself.⁴

Who Can Bring the Action

Only someone with legal authority to act for the estate can file. There are two routes.

Through an Open Probate Estate

If the deceased left a valid will, the named executor petitions the probate court for letters of office. Without a will, the court appoints an administrator. The petition identifies the decedent, the estimated estate value, and the known heirs and any beneficiaries named in a will. Once appointed, the representative has standing to hire counsel, file or defend lawsuits, and settle claims for the estate.

Through a Special Representative

Sometimes probate has not been opened and the limitations clock is running. Illinois allows the court to appoint a “special representative” specifically to prosecute the survival action without opening a full estate. Any person who appears entitled to participate in the estate can file a verified motion requesting the appointment, listing all known heirs and any legatees under a filed will. Within 90 days of appointment, the special representative must notify heirs and legatees by mail and publish notice to unknown heirs.⁴

If a full probate estate is opened later with a different representative, the court can substitute that person for the special representative. The special representative’s fees and attorney costs are treated as a claim against the case proceeds.³

The same framework applies on the defense side. If the wrongdoer dies and no estate has been opened, the plaintiff can ask the court to appoint a special representative for the deceased defendant. Recovery in that scenario is limited to the liability insurance protecting the estate, and the estate keeps the right to assert counterclaims.⁴

How Proceeds Are Distributed

Survival proceeds enter the estate as assets. Before any heir receives a dollar, the estate must satisfy creditor claims in the statutory order of priority. Funeral and burial costs, administration expenses, and certain guardianship fees come first. The surviving spouse’s or child’s statutory award comes next, followed by debts to the United States, then medical and nursing costs from the decedent’s final year along with certain employee wages, then traceable trust property, then debts owed to Illinois governmental units, and finally all other claims. Claims within the same class are paid proportionally if assets fall short.⁵

Only after valid creditor claims are paid does the remainder pass to beneficiaries under the will or intestacy laws. Heirs expecting a direct payout from a survival settlement are sometimes surprised by how much of it goes elsewhere first.

Federal Tax Treatment

How the recovery is taxed depends on what the money replaces. Damages received on account of personal physical injuries or physical sickness are excluded from federal gross income. That covers compensatory amounts for medical expenses, conscious pain and suffering from physical harm, and loss of normal life tied to a physical injury.⁶

Two categories fall outside the exclusion. Punitive damages are taxable as ordinary income regardless of the underlying claim. Damages for purely emotional distress not originating from a physical injury are also taxable, except to the extent they reimburse medical expenses for treating that distress that were not previously deducted.⁷

Because the IRS looks at what a payment was intended to replace, allocating specific settlement amounts to physical-injury compensatory damages versus other categories can meaningfully change the estate’s tax liability. Vague settlement language that lumps everything together creates avoidable risk.

1
Justia Law. Illinois Code 755 ILCS 5 Article XXVII – Miscellaneous
2
Illinois General Assembly. Illinois Compiled Statutes 740 ILCS 180/2
3
Illinois General Assembly. Illinois Compiled Statutes 735 ILCS 5/13-209
4
Justia Law. Illinois Code 735 ILCS 5 Article II – Civil Practice
5
Illinois General Assembly. Illinois Compiled Statutes 755 ILCS 5/18-10
6
Office of the Law Revision Counsel. 26 USC 104 – Compensation for Injuries or Sickness
7
Internal Revenue Service. Tax Implications of Settlements and Judgments