The Illinois Wrongful Death Act provides

us courts, Feb 23, 2005

Every such action shall be brought by and in the names of the personal representatives of such deceased person, and except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the economic and non-economic damages resulting from such death, to the surviving spouse and next of kin of such deceased person.... The amount recovered in any such action shall be distributed by the court in which the cause is heard or, in the case of an agreed settlement, by the circuit court, to each surviving spouse and next of kin of such deceased person in the proportion, determined by the court, that the percentage of dependence of each such person upon the deceased person bears to the sum of the percentages of dependency of all such persons upon the deceased person.

740 ILCS 180/2. The Illinois Wrongful Death Act makes clear that while only the personal representative of the decedent's estate can bring suit under the Illinois Wrongful Death Act for the wrongful death of the decedent, the ultimate recovery would belong to the others designated in the statute. Only Gary Mordhorst, as personal representative of Debra Mordhorst's estate, could bring an action under the Illinois Wrongful Death Act, but the persons who can recover under the Act include the surviving spouse and next of kin of the decedent. In In re Estate of Finley, 601 N.E.2d 699, 701 (Ill. 1992), the court stated that "the phrase 'next of kin' for purposes of the Wrongful Death Act, are those blood relatives of decedent in existence at decedent's death who would take decedent's property if decedent had died intestate." Under the Illinois Probate Act, if the decedent dies intestate with a surviving spouse and descendants, the decedent's estate is divided one-half to the surviving spouse and one-half to the decedent's descendants per stirpes. See 755 ILCS 5/2-1(a). Therefore, the debtor, his sister Melanie and his father Gary were entitled to recover for the wrongful death of Debra Mordhorst.

Next of kin under the Illinois Wrongful Death Act is not limited to minor children of the decedent. Illinois case law has repeatedly held that adult children of a decedent could recover under the Illinois Wrongful Death Act. See In re Estate of Keeling, 478 N.E.2d 871, 872 (Ill. App. 1985). Moreover, dependency upon the decedent is not limited to financial dependency, but also includes loss of society. See In re Estate of Wiese, 533 N.E.2d 1183, 1185 (Ill. App. 1989); Adams v. Turner, 555 N.E.2d 1040, 1042 (Ill. App. 1990).

The Illinois Wrongful Death Act specifically provides that a wrongful death recovery is for the benefit of the surviving spouse and the next of kin. The debtor is among the next of kin of Debra Mordhorst. The debtor did not become estranged from his father and move out of the family home until after the death of his mother. Therefore, under Illinois law, the debtor was dependent upon his mother.