The Survival Act of Illinois

The Survival Act of Illinois (755 ILCS 5/27-6) has been codified under the Probate Act of 1975. Pursuant to the Survival Act, some actions in addition to the actions that survive under common law will survive upon the death of the person to whom the actions had been accrued. The actions that survive include but not limited to actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property or for the detention or conversion of personal property etc.

The Survival Act does not create a statutory cause of action. It just allows a representative of the decedent to maintain those statutory or common law actions that have already accrued to the decedent prior to the decedent’s death. In other words, the personal representative is entitled to the recovery of damages for the injuries sustained by the deceased up to the time of death. A wrongful death action is for the injuries suffered by the next of kin due to the loss of the deceased rather than the injuries personally suffered by the deceased prior to death.

The claimants under the Survival Act are the personal representatives of the deceased. A wrongful death action is a ‘personal property’ under the Survival Act and therefore survives the death of the decedent. Compensatory damages for retaliatory discharge and a patient’s claim for medical malpractice are also properties under the Act. The Illinois courts provided broad definition to the ‘personal property’ in the Act. The courts held that the personal property is a generic term which should not be limited to just tangible goods. A spouse can bring a claim for loss of consortium under the Survival Act as it is a ‘personal property interest’. Claims for loss of consortium include, in addition to loss of support, elements of companionship, felicity and sexual intercourse.

A claim under the Survival Act is a derivative one. It is brought by the decedent’s representative but based on the injury to the decedent. A survival action allows for the recovery of damages for injuries sustained by the deceased up to the time of death. A survival action is to preserve rights of action for personal injury which accrued before the death of the injured person. Under the Survival Act, damages in personal injury actions can be recovered for conscious pain and suffering, loss of earning, medical expenses, and physical disability.

The common law provides that the right to recover punitive damages abates upon the death of an injured party. Therefore, if a statutory cause of action expressly provides a provision for punitive damages and the cause of action survives the death of the injured party under the Survival Act, the right to recover punitive damages will survive. If punitive damages are not authorized by the statute, any claim to those damages will be expired upon the injured person’s death.