Can I Still File a Wrongful Death Claim If My Deceased Family Member Was Partially at Fault?

 Posted on March 31, 2026 in Wrongful Death

Fatal vehicle crashes and other accidents are devastating for the families and friends of the deceased. All lives connected to the person who died are changed in a moment, and feelings of shock, disbelief, and grief can leave a person reeling, wondering what to do next.

Even more difficult is when loved ones find out that the deceased person contributed to the accident somehow. It can be hard to stop imagining the "what ifs" that might have changed the outcome. It also adds complications to questions of liability for anyone who was planning to file a wrongful death claim to recover compensation for the accident.

If you find yourself in this situation in 2026, you do still have legal options. Even if your family member may have contributed to the circumstances of the accident, it’s worth looking into the compensation options available to you. Our Lake County wrongful death attorneys can offer compassionate guidance on your specific case.

How Does Illinois Address Shared Fault in Wrongful Death Cases?

Illinois follows a legal rule called "modified comparative fault." Under 735 ILCS 5/2-1116, a family can still recover damages in a wrongful death case even if the deceased was partially responsible for the accident. The ability to recover damages is only cut off if the accident was more than 50 percent the fault of the deceased. The amount of damages that can be recovered is reduced proportionately to how much fault is assigned.

This means that as long as your family member wasn’t more than 50 percent responsible for the accident, you still have the option to seek compensation if you wish. This is also why having good legal representation is so important to these cases. The opposing side’s lawyers and insurance will often try to pose their client as having less responsibility to reduce or avoid payment.  

Who Assigns Fault in an Illinois Wrongful Death Case?

Fault is assigned by insurance adjusters if the case doesn’t go to trial and by a judge or jury if it does. The percentage of fault is determined through evidence, negotiation, and litigation if the case goes to trial. Insurance companies and defense attorneys will look at police reports, witness statements, surveillance footage, accident reconstruction in the case of car wrecks, and other records to argue their version of events.

What Evidence Can Help Your Case?

Strong evidence can limit how much fault is assigned to your loved one. Some examples include:

• Eyewitness accounts that contradict the defense's version of events

• Traffic camera or security footage showing what actually happened

• Medical records or toxicology reports

• Accident reconstruction reports from qualified professionals

• Cell phone or vehicle data records (especially pictures and videos)

If you’re considering filing a wrongful death claim, begin getting evidence together immediately. Evidence for cases like these often has a short shelf life, and the earlier you can get it to your attorney, the better.

What Damages Can a Family Recover in an Illinois Wrongful Death Claim?

Illinois's Wrongful Death Act includes a number of things families can seek compensation for in the event of a wrongful death. These include:

• The grief, sorrow, and mental suffering of surviving spouses and next of kin

• Loss of companionship, guidance, and society

• Financial support the deceased would have provided

• Loss of household services

Illinois also allows a separate claim under the Survival Act, 755 ILCS 5/27-6, for damages the deceased person could have claimed if they had survived. This can include medical expenses, pain and suffering before death, and lost wages between the injury and death.

Each case is different. The amount a family can recover depends on what happened, the strength of the evidence, and how fault is ultimately assigned.

How Long Do You Have to File?

Under Illinois law, wrongful death claims generally must be filed within two years of the date of death. Missing this deadline usually means losing your right to recover anything at all. Talk to a personal injury or wrongful death attorney if you’re not sure if your case is still viable.

Call a Lake Zurich, IL Wrongful Death Attorney Today

You don’t need to make the difficult decision about a wrongful death suit without good legal advice. Speaking to a legal professional will give you a clearer picture of what you may stand to gain in the midst of your loss. Our Lake County personal injury lawyers at Premier Illinois Injury Lawyers are a father and daughter team local to Illinois with over 25 years of combined personal injury law experience. We offer free consultations to help the families in our community understand their legal options. Call Premier Illinois Injury Lawyers at 847-796-8448 today.