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Do the laws in il. state that an adult child is entitled to half of their deceased parents estate? Even if the parent remarried.

Chicago, IL |

I am an adult and I have 2 older sisters as well, our father was remarried and had other children in that marriage. Our father was killed during a work injury and there was a wrongful death suit involved. I want to know what rights my sisters and I have to any of the wrongful death suit, or the estate.

Attorney Answers 4

Posted

You need to retain an attorney to be sure your rights are protected. If your father had a Will that will control how his estate is disposed. If your father did not have a will and he was still married to his second wife, his estate will be distributed 1/2 to his wife and 1/2 to all of his children. As an heir the executor or administrator of his estate will be required to give you notice when probate proceedings are commenced. Again, I strongly suggest that you retain an attorney.

The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Illinois. Responses are answers to general legal questions. The person who asked the question and any other person who has viewed this response should consult a local attorney for specific answers to questions.

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Posted

What you may recover is a Wrongful Death action may be very different from what you might receive as an heir. In Illinois your recovery as a survior of your father will be based on the degree of dependency- financial and emotional- that can be shown between the your dad and his next of kin.

Part of the recovery may include damages for the pain and suffering your father endured after the accident and before his death. These survival damages will be paid according to intestate secession if your father left no will. In that case, his children will recieve a share of
one half of his estate (minor children may also be entitled to a minor's award).

Lastly, worker's compensation rules may provide that his spouse and minor or dependent
children receive additional benefits (subject to reimbursement from the wrongful death
recovery, if any).

There are three potential causes of action, all with their own (sometimes conflicting) rules.
Consult with an attorney immediately to make sure that you and your older sisters are
appropriately represented.

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Posted

Aside from the suit you describe, a person is able to have their estate distributed in any way they see fit through proper estate planning, most commonly with a will. To the extent that your father had a will or other estate planning document, that document governs the distribution of his estate unless it is invalid (for example, if he was not competent to prepare a will or was unduly influenced, either of which would need to be shown). There are provisions to protect spouses and minor/dependent children, but a parent has every right to exclude an able, adult child.

Concerning the estate, if your father did not have a will, then the estate would be divided, as has been noted in an earlier answer, half to the surviving spouse, half to be divided among all his children.

In either event, however, keep in mind that assets are often held jointly between spouses. So, if a home, bank account, vehicle or other asset was held jointly, then the survivor retains that asset. Similarly, insurance polices and many benefit plans provide for the funds to pass to designated beneficiaries. So, that would also override.

Concerning the workers' compensation/wrongful death claim, the above would not necessarily apply directly, but may be suggested as persuasive. You will get your best answer posting that aspect of your question under the categories of personal injury or workers' compensation, but I believe the court would have discretion in determining the apportionment in a wrongful death context.

There are several excellent attorneys that respond to such questions on this website or others that can be referred. I suggest you hire an attorney to protect your interests.

The scope of this space does not afford an opportunity to adequately advise you. The response provided is intended to be informative, but not final. You are advised to arrange a consultation at which all facts and documents can be explored and terms for representation agreed. An attorney-client relationship must be formally established.

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Posted

There are two different answers. The probate lawyer who answered is right about the estate. However, the wrongful death claim doesn't rely on a will at all. Your rights are equal to the other children and the second wife. You're all heirs at law without specific differentiation between your respective rights. The wrongful death act says that (if you don't all agree to something yourselves), the court will hold a hearing to determine your respective degrees of closeness to the deceased and divide the proceeds accordingly.

You really must get competent legal advice, preferably as soon after the death as possible or you could end up with real problems, particularly if you ended up with an estate administrator that was hostile to you. It's ugly, but it certainly does happen.

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