The remaining proceeds due the debtor were later paid to the trustee pending final resolution of the issues in this case. The debtor contends that he had no property interest in the wrongful death action or the proceeds because he did not file a claim, and that his family's decision to allow him to share in the settlement proceeds was a gift. Further, the debtor argues that the proceeds held by the trustee should be paid to him. At the time of his bankruptcy, the debtor had the right to recover damages under the Illinois Wrongful Death Act for the death of his mother. The debtor's argument, that he had no property interest because he did not file a wrongful death claim for the death of his mother, is without merit.
Illinois law governs what property interest the debtor had in the wrongful death claim.
The trustee in bankruptcy succeeds to all causes of action held by the debtor at the time the bankruptcy petition is filed. This includes causes of action which the debtor fails to disclose in his bankruptcy schedules. Any cause of action belonging to the debtor at the time of his bankruptcy is property of the estate. 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. 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.