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John E. Young, Jr., the father of decedent, Brejonna MoniqYoung, appeals from an order of the circuit court of Lake Countythat awarded him $8,000 as his share of a settlement obtained in awrongful death action brought by Brandy Johnson, the mother ofdecedent and the special administrator of her estate. We reverseand remand with directions.

On April 9, 1999, Brejonna died as the result of thenegligence of Betty J. Christiansen, an operator of an automobilethat caused an accident resulting in the initial injury to Brandyand Brejonna, and the subsequent negligence of the health careproviders at Provena St. Therese Medical Center (Provena), whichresulted in Brejonna's stillbirth. Brejonna was then anapproximately eight-month-old viable fetus, having been conceivedby Brandy and John, who had never married.

Brandy was appointed special administrator for the purpose ofprosecuting an action against defendants for the death of Brejonna.Thereafter, Brandy filed a complaint against defendants allegingthat defendants' improper care resulted in the stillborn deliveryof Brejonna. Brandy alleged that Brejonna left surviving heirs andnext of kin.

Although Christiansen was not involved in the underlying suitagainst defendants, Brandy filed a motion to approve a partialsettlement of $100,000 with Christiansen. The trial court approvedthe partial settlement. After the payment of attorney fees andcosts, $59,000 was available for distribution.

Subsequently, a mediation was conducted with the named defendants. Brandy anddefendants entered into a settlementagreement in the amount of $630,000. Thereafter, Brandy filed amotion to approve the settlement, pay attorney fees, and determinedependency for the purposes of a distribution. The motion providesthat, at the time of Brejonna's death, she left surviving hermother, Brandy; her sister, Janea Eternal Young; and her father,John. The motion requests that Janea, born July 17, 1996, receivea portion of the net settlement of the estate as a structuredsettlement in the form of a $50,000 annuity. A second motion toapprove the settlement requested that the net proceeds ofapproximately $395,000 be apportioned between the parents becauseJanea had already received her portion. The trial court approvedthe settlement and authorized the payment of attorney fees, costs,and expenses. The court also ordered that the remaining sum of$395,354 be deposited into an interest-bearing account untildependency and entitlement were determined. It is this amount,plus the $59,000 from the partial settlement, that the trial courtwas asked to apportion among the surviving next of kin.

At the evidentiary hearing, the trial court heard argumentconcerning the manner in which the settlement should bedistributed. Brandy argued that, under the Wrongful Death Act (740ILCS 180/1 et seq. (West 2000)), a settlement should be distributedamong the heirs of the decedent pursuant to the laws of descent anddistribution. Because the decedent was illegitimate, Brandycontended that, pursuant to section 2--2 of the Probate Act of 1975(Probate Act)(755 ILCS 5/2--2 (West 2000)), only an eligible parentof an illegitimate can inherit. To prove eligibility under section2--2, Brandy argued, John must present evidence that duringdecedent's lifetime he acknowledged the decedent as his child,established a parental relationship with the decedent, andsupported the decedent as the child's parent. 755 ILCS 5/2--2(West 2000). Although Brejonna was stillborn, Brandy believed thatJohn's eligibility could be determined by looking to the role heplayed in Janea's life.

John disagreed. He argued that comparing the role he playedin Janea's life to the role he would have played in Brejonna's lifewould be pure speculation and would place an undue burden on him toprove eligibility. John argued that the law presumes a parentsustains substantial pecuniary loss for the loss of the child'ssociety when a decedent leaves a surviving parent. Because neitherBrandy nor John had the opportunity to know Brejonna, John arguedthat their loss was equal and, therefore, the distribution shouldbe shared equally. Over John's objections, however, the courtbelieved that the eligibility criteria needed to be equallyestablished by both sides.

Brandy presented evidence of John's relationship, or lackthereof, with his daughter Janea. Brandy also introduced evidenceof John's criminal background, including evidence that he had beenincarcerated at the time of Brejonna's death and previously hadbeen convicted. Brandy also presented evidence showing that Johndid not financially support Janea or financially assist her whileshe was pregnant with Brejonna.

Testimony further revealed that on April 31, 2000, 15 monthsafter Brejonna's death, Brandy gave birth to Qyshaan Johnson, who is Brejonna's half-brother. Additionally, a photograph wasintroduced depicting John with his daughter Janea and son Roderick,who, according to John's testimony, is his son by another woman.

Following the hearing of the respective claimants' entitlementto the proceeds, the trial court stated:

"And to be succinct, I simply think that we can resolvethis case by answering the threshold question of whether ornot Mr. Young is an eligible parent, as that term is definedin the statute, in the negative, it doesn't satisfy -- well,it satisfied one of three factors, which is that he didacknowledge paternity, which he did at a time after hediscovered there was some profit to be made thereby. And so,I don't think we need even reach the issue of what degree ofdependency Mr. Young had on Brejonna, because the statute thatdefines an eligible parent was adopted by the legislature inreaction to the court's decision in the Hicks case. While Ibelieve the court said that you can't have a blanket rule thatfathers of illegitimates can't recover, you can have a rulethat says they have to prove that they're a father in morethan simply the genetic sense before they can be in the lineof descendant distribution.

And the cases we cited from the United States SupremeCourt I think accurately set forth public policy that thegovernment has in seeing that the fathers of illegitimatechildren remain part of their lives, both emotionally andfinancially. And I think the evidence shows in this case thatMr. Young clearly didn't do that, which he had the onus of. And I believe there's absolutely nothing in the record beforeus [to] indicate that Brejonna, had she survived, he wouldhave treated her any different than he has Janea.

I believe that he has suffered little, if no loss, andhas no reasonable expectation of any pecuniary benefits due tothis child's death, be it stillborn, or trying to show thatthe five year [old] has his relationship. I think that theevidence has shown to the contrary that, in fact, hisrelationship would be limited with this particular child. Ibelieve the mother would have provided for that child."

The trial court then issued the following written order, inrelevant part:

"3. There remains a net amount of [$455,354.78] plusaccrued interest remaining in the Estate of Brejonna MoniqYoung, deceased, for distribution to the next of kin pursuantto [section 2 of the Wrongful Death Act].

4. That due to the stillbirth of the decedent BrejonnaMoniq Young, the Court can make no determination ofeligibility pursuant to [section 2--2 of the Probate Act] andtherefore finds both Brandy Johnson and John E. Young, Jr. tobe next of kin of Brejonna Moniq Young as that term iscontemplated by [section 2 of the Wrongful Death Act];

5. That Qyshaan Johnson, whose birth to Brandy Johnsonpost-dated the death of the decedent, is a next of kin ofBrejonna Moniq Young pursuant to the terms of [section 2--3 ofthe Probate Act];

6. That the degree of dependency of Brandy Johnson onthe decedent Brejonna Moniq Young is substantial.

7. That the degree of dependency of Qyshaan Johnson onthe decedent Brejonna Moniq Young is equal to that degree ofdependency of Janea Young on decedent Brejonna Moniq Young;

8. That the degree of dependency of John E. Young, Jr.on the decedent Brejonna Moniq Young is de minimus.

9. That John E. Young is entitled to [$8,000] or 1.756%of the net proceeds in the estate as his share of thedistribution of the assets of the estate;

10. That the clerk shall deduct from that amount thearrearage in child support owed by John E. Young, Jr. asRespondent in the case of In re the Parentage of Janea Young,presently pending in the Circuit Court of Lake County as CaseNo. 99 F 101 in the amount of [$2,380] which amount shall bepaid to Brandy Johnson;

11. That the net amount due John E. Young, Jr. of[$5,620] shall be made payable to John E. Young, Jr. and [hisattorney];

12. That [$50,000] of the net balance in the estateshall be used to purchase an annuity in favor of QyshaanJohnson on the same terms as have been approved by prior orderof court for Janea Eternal Young.

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13. That the balance of the estate in the amount of[$397,354] plus interest accrued to date to be distributed toBrandy Johnson as the mother of Brejonna Moniq Young,deceased."

John filed a timely notice of appeal. Thereafter, the trialcourt permitted a distribution of $50,000 to Brandy and a paymentof $8,340 for attorney fees. The remainder of the settlementremains in an account until further order of the court. The trialcourt also appointed counsel for Qyshaan Johnson.

I. Waiver

Initially, we must address Brandy's contention that John haswaived any argument that the trial court erred in considering hispaternal relationship with Janea by failing to object to theadmission of such evidence at the hearing. The record shows,however, that John did object to this evidence by asserting that itwas prejudicial to compare the role he played in Janea's life todetermine his entitlement to the wrongful death proceeds.

Brandy further argues that John failed to preserve for appealhis right to challenge the award to Janea because that award wasmade in an order entered on June 28, 2001, and John appeals onlythe order entered on October 17, 2001, which distributes theremainder of the settlement proceeds between John, Brandy, andQyshaan. Brandy also points out that Brejonna's estate filed amotion to approve the distribution in favor of Janea and, eventhough John's attorney was aware of the motion and the hearingdate, he never objected to the distribution. Although John'snotice of appeal does not specify that he is also appealing fromthe order of the award made to Janea entered on June 28, 2001, wefind that the unspecified order is reviewable because "it is a'step in the procedural progression leading' to the judgmentspecified in the notice of appeal." Burtell v. First CharterService Corp., 76 Ill. 2d 427, 435 (1979), quoting Elfman Motors,Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir. 1977). Accordingly, we find no waiver or jurisdictional defect.

II. Issues and Standard of Review

Turning now to the remainder of the issues raised on appeal,John argues that the trial court abused its discretion by comparinghis past relationship with Janea to determine his futurerelationship with Brejonna and that the trial court's reliance onthe factors set forth in section 2--2 of the Probate Act todetermine his entitlement to the wrongful death proceeds placed anundue burden on him to prove his degree of dependency as requiredunder the Wrongful Death Act. John continues to assert, as he didin the trial court, that the parents and Janea share thedistribution equally because the law presumes a parent sustainssubstantial pecuniary loss for the loss of a stillborn child'ssociety and because neither the parents nor Janea had theopportunity to know Brejonna. In addition, John contends that thetrial court's award constituted a denial of equal protection bypresuming that John would not be involved in his illegitimatechild's life simply because he is a man and the settlement wasimproperly based upon allegations of irrelevant wrongful andcriminal conduct. Both parties agree, however, that the trialcourt erred in distributing a portion of the award to Qyshaanbecause he was born 15 months after the death of Brejonna and isnot a posthumous child. We find that the trial court erred byfailing to identify the proper eligible beneficiaries, by applyingthe wrong standard in distributing the property, and by failing toprotect the rights of the eligible minor beneficiaries.

Generally, the division of an award in a wrongful death actionis left to the circuit court's discretion. Adams v. Turner, 198 Ill. App. 3d 353, 356 (1990). However, our holding rests on therelationship of section 2 of the Wrongful Death Act and section 2--2 of the Probate Act. The paramount concern in construing astatute is to give effect to the intent of the legislature. Inorder to answer this question, we must ascertain the meaning of thestatute. In re Estate of Forrest, 302 Ill. App. 3d 1021, 1024(1999). To ascertain the legislature's intent, the court mustconstrue the language of the statute according to its plain andordinary meaning. Forrest, 302 Ill. App. 3d at 1024. Where thelanguage is clear and unambiguous, we need not refer to legislativehistory but must enforce the statute as enacted. Forrest, 302 Ill.App. 3d at 1024. Also, as the Probate Act creates a cause ofaction that was unknown at common law, we must construe itstrictly, declining to read into the statute qualifications thelegislature did not specify. Rallo v. Crossroads Clinic, Inc., 206Ill. App. 3d 676, 680-81 (1990); Forthenberry v. Franciscan SistersHealth Care Corp., 156 Ill. App. 3d 634, 636 (1987). Theconstruction of a statute is reviewed de novo. Forrest, 302Ill.App. 3d at 1024.

III. The Wrongful Death Act

A basic understanding of the Wrongful Death Act is helpful toour determination. The wrongful death statutory provisions seek toprotect the legal right of survivors to be compensated for thepecuniary loss they may have sustained by reason of the death ofthe injured person. Johnson v. Village of Libertyville, 150 Ill.App. 3d 971, 973 (1986). Section 2 of the Wrongful Death Actprovides, in relevant part:

"Every such action shall be brought by and in the namesof the personal representatives of such deceased person, and*** the amount recovered in every such action shall be for theexclusive benefit of the surviving spouse and next of kin ofsuch deceased person and in every such action the jury maygive such damages as they shall deem a fair and justcompensation with reference to the pecuniary injuriesresulting from such death, to the surviving spouse and next ofkin of such deceased person.

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The amount recovered in any such action shall bedistributed by the court in which the cause is heard or, inthe case of an agreed settlement, by the circuit court, toeach of the surviving spouse and next of kin of such deceasedperson in the proportion, as determined by the court, that thepercentage of dependency of each such person upon the deceasedperson bears to the sum of the percentages of dependency ofall such persons upon the deceased person.

The trial judge shall conduct a hearing to determine thedegree of dependency of each beneficiary upon the decedent. The trial judge shall calculate the amount of damages to beawarded each beneficiary, taking into account any reductionarising from either the decedent's or the beneficiary'scontributory fault." 740 ILCS 180/2 (West 2000).

The first paragraph of section 2 governs the recovery againstthe tortfeasor by the administrator of the estate. Fontanne v.Federal Paper Board Co., 105 Ill. App. 3d 306, 313 (1982). Thenext two paragraphs do not apply to suits against the tortfeasors. Rather, they govern the distribution of whatever amount isrecovered in the tort action, whether it is recovered by jury trialor by an agreed settlement. Fontanne, 105 Ill. App. 3d at 314.

For purposes of determining who is entitled to damages under the Wrongful Death Act, just compensation may be awarded to the"next of kin" of a decedent. "Next of kin" are those bloodrelatives of the decedent who are in existence at the time of thedecedent's death who would take the decedent's property if thedecedent had died intestate. Miller v. Kramarczyk, 306 Ill. App.3d 731, 732-33 (1999). Under the statutory rules of intestatedescent of the Probate Act, if there is no surviving spouse ordescendant but a parent, brother, sister, or descendant of abrother or sister of the decedent, the estate passes to theparents, brothers, sisters, and nephews and nieces of the decedent. 755 ILCS 5/2--1(d) (West 2000). No distinction is made between the"kindred of the whole and the half blood." 755 ILCS 5/2--1 (West2000). Applying these principles and rules to the present case,the eligible beneficiaries to the wrongful death proceeds includeBrejonna's natural parents, siblings, and half-siblings who were inexistence at the time of Brejonna's death.

Here, the trial court identified Qyshaan as a "posthumouschild" because his "birth to Brandy Johnson post-dated the death ofthe decedent" and awarded him a $50,000 annuity. A "posthumouschild" does not have to be living at the time of the decedent'sdeath in order to share in the decedent's estate. Section 2--3 ofthe Probate Act (755 ILCS 5/2--3 (West 2000)) provides that a childborn after the death of the intestate decedent is entitled to hisor her just portion of the estate in all respects as though he orshe had been born during the life of the decedent. However, a"posthumous child" is defined as a child born after the death ofhis or her parent. Qyshaan is not a lineal descendent of Brejonna, and, because Qyshaan was born 15 months after his half-sisterBrejonna died, he clearly was not in existence at the time ofBrejonna's death and should not have been considered an eligiblebeneficiary. Accordingly, the trial court erred by identifyingQyshaan as an eligible beneficiary and awarding him a $50,000annuity.

Additionally, the evidence reveals that John has a son namedRoderick, John's son by another woman. Photographs taken in 1997were introduced into evidence, which depicted John with hischildren Roderick and Janea. It is clear that Roderick is a half-brother of Brejonna who was in existence at the time of her death. Accordingly, the trial court erred by failing to identify Roderickas an eligible beneficiary of Brejonna's estate.

We note at this juncture that Brandy, as the administrator ofBrejonna's estate, stands in a fiduciary relationship to thebeneficiaries under the Wrongful Death Act. See Johnson v. Villageof Libertyville, 150 Ill. App. 3d 971, 974 (1986). As such, Brandyis obligated to act in the utmost good faith to protect thebeneficiaries' interests and must exercise at least that degree ofskill and diligence that a reasonably prudent person devotes to hisor her personal affairs. Johnson, 150 Ill. App. 3d at 974-75. Brandy therefore has an obligation to identify and notify thoseindividuals who are the proper eligible beneficiaries of thewrongful death award.

In addition, it is the duty of the court to protect theinterests of minors, and it is bound to notice substantialirregularities even though objections are not properly presented onthe minors' behalf. Muscarello v. Peterson, 20 Ill. 2d 548, 555(1960). The trial court should have insured that the rights ofRoderick and any other siblings were preserved. We note that onremand the trial court can accomplish this by ordering John to filean affidavit of parentage and ordering Brandy to ascertain whetherother eligible beneficiaries existed at the time of Brejonna'sdeath. The trial court also may appoint guardians ad litem for theminor beneficiaries, including Roderick, Janea, and unknown heirs.

IV. Standard Governing the Distribution of the Settlement

In the trial court's written order, the trial court statedthat section 2--2 of the Probate Act (755 ILCS 5/2--2 (West 2000))did not control the distribution of the settlement. However, it isclear from the transcripts of the hearing that the trial courtdirected the parties to use the "eligibility" requirements ofsection 2--2 to prove their degree of entitlement to the proceedsof the wrongful death settlement. John argues that the trial courterred by relying on a statute that had no bearing on the presentcase and by failing to apply the correct standard in distributingthe wrongful death settlement. We agree.

Section 2--2 governs the rules of inheritance fromillegitimate children and is unrelated to a wrongful death action. It provides that an "eligible" parent of an illegitimate decedentwho dies intestate may inherit from the decedent's estate if theparent of the decedent shows that "during the decedent's lifetime"the parent (1) acknowledged the decedent as the parent's child; (2)established a parental relationship with the decedent; and (3)supported the decedent as the parent's child. 755 ILCS 5/2--2(West 2000).

In 1955, an amendment to the Wrongful Death Act altered themethod of distribution. Before 1955, the award was distributedaccording to intestate succession under the Probate Act. See Ill.Rev. Stat. 1955, ch. 70, par. 2. Now, the proper beneficiaries ofa wrongful death settlement are determined according to the law ofintestacy. Morris v. William L. Dawson Nursing Home Center, Inc.,187 Ill. 2d 494, 497 (1999). However, the guidelines set forth insection 2 of the Wrongful Death Act provide the basis fordetermining how the wrongful death proceeds are distributed. 740ILCS 180/2 (West 2000). We note that the facts of In re Estate ofPoole, 328 Ill. App. 3d 964 (2002), are similar to the facts of thepresent case. However, Poole involved letters of administrationunder section 9--3 of the Probate Act (755 ILCS 5/9--3 (West1998)), and, therefore, we find it inapplicable to the presentcase.

V. Distribution of the Settlement

Under section 2, the distribution of the wrongful deathproceeds must be based on the proportionate percentages of theeligible beneficiaries' dependency on the decedent. Adams v.Turner, 198 Ill. App. 3d 353, 356 (1990). There is no mathematicalcalculation or formula for determining the division of an award. In re Estate of Williams, 223 Ill. App. 3d 505, 509 (1992). Thestatute speaks only of proportions, the proportions of dependencyto the total amount of dependency. In re Estate of Keeling, 133 Ill. App. 3d 226, 229 (1985). For clarity, we recommend that thetrial court assign percentages to each of the eligiblebeneficiaries.

Moreover, "dependency" has not been defined by thelegislature. Keeling, 133 Ill. App. 3d at 229. In most cases,"dependency" implies the presence of a previously existingrelationship. It also connotes support. "Dependency," however, isnot limited simply to a previous relationship with a decedent. Italso includes loss of society. Adams, 198 Ill. App. 3d at 356-57. In the context of establishing the existence and extent of damagesfor the loss of a child, the supreme court held that a rebuttablepresumption for the loss of society exists for the wrongful deathof a stillborn child. Seef v. Sutkus, 145 Ill. 2d 336, 339 (1991);see also Smith v. Mercy Hospital & Medical Center, 203 Ill. App. 3d465 (1990). Although siblings may recover damages for pecuniaryinjuries resulting from a wrongful death (In re Estate of Finley,151 Ill. 2d 95, 103 (1992)), we have not found any decision holdingthat there is a rebuttable presumption for the loss of a stillbornsibling's society.

We believe that, in the context of distributing the wrongfuldeath proceeds, the rebuttable presumption for lost society for thewrongful death of a parent's stillborn child should be consideredby the trial court. The Wrongful Death Act by its very naturecontemplates compensating parents for their loss caused by the defendant's negligence or wrongful act. The very purpose of theWrongful Death Act is to provide the eligible beneficiaries withthe benefits that "would have been received from the continued lifeof the decedent." Elliott v. Willis, 92 Ill. 2d 530, 540 (1982). The parents' pecuniary interests are reflected in the amount ofdamages received. We see no reason why this pecuniary interestshould be ignored in the distribution of the settlement.

We recognize that the final determination of the degree ofdependency and of the distribution of the wrongful death settlementis left to the discretion of the trial court. In re Estate ofWilliams, 223 Ill. App. 3d 505, 509 (1992). We also realize that,simply because the parents of a stillborn child are presumed tohave suffered a loss of the child's society, it does not inevitablyfollow that parents may be awarded equal damages. The presumptionis still rebuttable. Parents may have been equally deprived of thelove and affection of a stillborn but may not have been equallydeprived of that child's companionship had she or he survived. While section 2--2 of the Probate Act governs the rules ofinheritance, we understand that the "eligibility" requirements ofsection 2--2 may overlap with those factors considered by the trialcourt when determining the degree of dependency under the WrongfulDeath Act. Both the eligibility requirements of section 2--2 ofthe Probate Act and the determination of the degree-of-dependencyrequirement of section 2 of the Wrongful Death Act address similarpolicy concerns, namely, preventing absentee parents from obtainingmore than the share to which they are entitled. Thus, evidence ofwhich parent would have been the custodial parent or evidence ofwhether the parent would have played a significant role in the lifeof the deceased is relevant to support or rebut the presumption oflost society. Evidence as to whether the siblings would havelived in the same home with the decedent may also be relevant.

We conclude that the trial court failed to ascertain theproper beneficiaries, failed to employ the degree-of-dependencystandard in determining the distribution of the wrongful deathproceeds, and failed to protect the rights of the eligible minorbeneficiaries. Because we reverse the judgment of the trial courton this basis, we need not address the constitutional issue. SeeBonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 396(1994)(constitutional issues need not be addressed if matter isreversed on other grounds).

Accordingly, we reverse the settlement award in its entiretyand remand the cause for a new hearing. The administrator ofBrejonna's estate is directed to ascertain and notify all eligiblebeneficiaries and unknown heirs. The trial court is directed toprotect the interests of the eligible minor beneficiaries andunknown heirs.

One final matter must be addressed before closing. Althoughthe parties do not raise this issue, the record does not revealwhat authority the trial court relied upon in ordering that theclerk deduct $2,380 from John's share of the wrongful deathproceeds to pay the child support arrearage in an unrelated case. We therefore direct the parties and the court to address thismatter if it arises during remand.

Based on the foregoing, we reverse the judgment of the trialcourt and remand the cause for a new hearing.

Reversed and remanded with directions.

O'MALLEY and GROMETER, JJ., concur.