Illinois Survival Act: Claims, Damages, and Punitive Rules

The Illinois Survival Act, codified at 755 ILCS 5/27-6, keeps a deceased person’s legal claims alive so the estate can pursue them after death.¹ Under older common law, a personal injury claim died with the victim. The statute reverses that result by letting the estate’s representative continue a lawsuit the deceased could have filed, or start one, and recover for the harm the person suffered between the injury and death.

What Claims Survive Under the Act

The statute lists the categories of claims that carry forward. These include personal injury actions (except defamation), damage to real or personal property, actions to recover wrongfully taken or held property, fraud claims, actions against public officers for misconduct, and claims under the Liquor Control Act.¹ If the deceased person could have sued while alive, the estate can generally step in.

Slander and libel are the express exception. Illinois treats reputation-based harm as personal to the living, so those claims end at death.¹

Damages the Estate Can Recover

Recovery is bounded by a single principle: only losses the deceased personally experienced between the injury and death count. Anything the family lost after the death belongs to a separate wrongful death claim, not the survival claim.

Conscious Pain and Suffering

This is often the largest component of an award. The estate must show the deceased was actually aware of pain at some point between injury and death. Medical expert testimony helps but isn’t required. Illinois courts have accepted lay witness accounts; in one appellate decision, testimony that the injured person was talking and nodding before death was enough to send the pain claim to the jury. Where medical evidence shows an injury typically causes severe pain, courts treat that as relevant even without direct testimony about the person’s subjective experience. If someone was rendered immediately unconscious and never regained awareness, this claim becomes very hard to prove.

Medical Expenses

Hospital care, emergency treatment, surgeries, and other medical bills incurred between injury and death are recoverable and documented through billing records.

Lost Wages

Income the deceased would have earned from the date of injury to the date of death is recoverable. Future lost earning capacity, projected out over years the person would have worked, is not part of the survival claim. That belongs to wrongful death.

Property Damage

If the same incident damaged the deceased person’s vehicle, home, or belongings, those losses are part of the survival claim.¹

Punitive Damages After the 2023 Amendment

Public Act 103-0514 amended 755 ILCS 5/27-6 to permit “punitive damages when applicable” in survival actions.¹ The change applies to cases filed on or after August 11, 2023. Before that date, punitive damages weren’t available at all in survival claims.

Winning them requires clearing a higher bar than ordinary negligence. The estate must show by clear and convincing evidence that the defendant acted with evil motive or with reckless and outrageous indifference to a highly unreasonable risk of harm, combined with conscious indifference to the rights and safety of others.² Illinois does not cap the dollar amount.

Three categories are carved out. Punitive damages are unavailable in healing art malpractice cases (medical malpractice), legal malpractice cases, and claims against the state, local governments, or their employees acting in an official capacity.¹ The underlying claim still survives in those cases; only the punitive component is off the table.

Filing Deadlines

A survival action based on personal injury generally must be filed within two years of the date of injury, the same deadline the deceased would have faced. If the person dies before that deadline expires, the estate gets the later of the original two-year date or one year from the date of death.³ That extra window keeps a claim from being lost when death occurs close to the original deadline.

When the defendant dies before the statute of limitations expires, the plaintiff has six months after the defendant’s death to file against the defendant’s personal representative, even if the original limitations period has already run.³ If the plaintiff didn’t know the defendant had died and sued the deceased defendant, the plaintiff has two years from the original limitations deadline to substitute in the personal representative.

Claims tied to murder, manslaughter, or other violent intentional conduct carry a five-year window. Courts enforce these deadlines strictly, and missing one ends the case.

Who Can File

Only a legally appointed representative of the estate can bring or continue a survival action. A spouse or adult child, on their own, cannot.

If there’s a valid will, the named executor has priority. Without a will, the probate court appoints an administrator, giving preference to the surviving spouse, then children, grandchildren, parents, siblings, and more distant relatives.⁴ The appointment produces Letters of Office, the formal credential the representative uses to sign documents, accept settlements, and manage litigation. The representative acts as a fiduciary for the beneficiaries.

When no probate estate has been opened and the limitations clock is running, the court can appoint a special representative solely to prosecute the survival claim. Any person who appears entitled to participate in the estate can file a verified motion asking for that appointment.³ If a full probate estate is opened later, the court can substitute in the estate’s representative.

Illinois also allows a small estate affidavit when the deceased person’s personal property (excluding vehicles registered with the Secretary of State) does not exceed $150,000, effective for deaths on or after August 15, 2025.⁵ The affidavit covers only personal property and can’t be used if a probate case is open or pending. For active litigation, a special representative or full probate is typically still needed.

How the Money Gets Distributed

Survival Act proceeds go into the estate, not directly to family members. Because the recovery is treated as if the deceased had received it during their lifetime, estate creditors get paid first. Healthcare providers, Medicare, and Medicaid can hold liens for treatment costs they covered. Attorney fees, which commonly run between one-third and 40 percent under a contingency agreement, also come out before anything is distributed.

What remains passes under the will. If there is no will, Illinois intestacy law controls: with a surviving spouse and at least one descendant, each takes half; a surviving spouse with no descendants takes the entire estate.⁶ The probate court oversees the final distribution. Unlike a wrongful death award, which goes directly to named beneficiaries, survival proceeds pass through probate.

Survival Act vs. Wrongful Death

These are two different claims that compensate different people for different losses, and a single incident can support both. The survival claim recovers what the deceased experienced from injury to death: their pain, their medical bills, their lost wages. That money goes into the estate. A wrongful death claim compensates the surviving family for what they lost because of the death itself, including financial support, companionship, and grief. It benefits the spouse, children, or next of kin directly. The personal representative brings both actions, but keeping the damages properly assigned to the right claim matters throughout the litigation.

Taxes on a Survival Act Recovery

Federal tax treatment depends on what the money compensates. Damages for physical injuries or physical sickness, including pain and suffering tied to a physical injury, are excluded from gross income.⁷ For most survival actions arising from a physical injury, the bulk of the recovery is tax-free.

Punitive damages are always taxable and must be reported as other income. Interest that accrues on a judgment or settlement while a case is pending is taxable as interest income.⁸ Any portion of an award compensating for emotional distress that isn’t connected to a physical injury is also taxable, though medical expenses attributable to that distress can offset the taxable amount.⁷ How the settlement is allocated at the time of resolution drives the tax result, so working with a tax professional before signing matters.

1
Illinois General Assembly. Illinois Code 755 ILCS 5/27-6 – Actions Which Survive
2
Illinois General Assembly. Illinois Code 735 ILCS 5/2-1115.05 – Punitive Damages
3
Illinois General Assembly. Illinois Code 735 ILCS 5/13-209 – Death of Party
4
Illinois General Assembly. Illinois Code 755 ILCS 5 – Probate Act of 1975, Sections 9-1 Through 9-4
5
Illinois General Assembly. Illinois Code 755 ILCS 5/25-1 – Small Estate Affidavit
6
Illinois General Assembly. Illinois Code 755 ILCS 5 – Probate Act of 1975, Section 2-1
7
Office of the Law Revision Counsel. 26 USC 104 – Compensation for Injuries or Sickness
8
Internal Revenue Service. Settlements – Taxability