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What happens when a spouse is excluded in an Illinois will?

On Behalf of | Aug 27, 2021 | Estate Administration, Estate Planning, Family Law |

Marriage is one of the most significant commitments two people can make to each other. This is why the passing of a spouse is so difficult, regardless of whether the two individuals were still married, cordially acquainted, or estranged. Therefore, an omission from the will of the deceased will come as a considerable blow to most people. However, Illinois law protects the rights of the disinherited to a certain extent in a way that’s fair to both the family of the decedent and the disinherited spouse. 

Prenuptial agreements

According to Illinois law, the will of the deceased takes a back seat to provisions relating to spousal inheritance in a valid prenuptial agreement. Two situations can arise from this.

If a prenuptial agreement states the surviving spouse is to receive certain assets in the estate, this provision takes precedence over any terms regarding their disinheritance in the deceased’s will.   

However, the reverse is also true. If the prenuptial agreement relinquishes the living spouse’s inheritance rights, they will receive nothing from the decedent’s will. 

Renouncing the will

The surviving spouse may lay their claim to a portion of the deceased’s estate if the testator’s will excludes them by renouncing the will altogether. Illinois law allows for the submission of a renunciation petition to the probate court, where the filing of the will took place.

Submission of the will for probate triggers a seven-month deadline, after which the filing of the renunciation petition is not possible. A statement expressing the spouse’s intent to renounce the will and their signature must clearly be seen in the petition.

Rights of the spouse

Illinois law provides for the right of renunciation, also known as the elective share or the right of election. This is the right of a spouse to inherit from the estate of the decedent following the will’s renunciation. The spouse acquires a percentage of the estate once the probate court confirms the presence of the estate.

The awarding of this percentage of the estate follows the removal of necessary deductions from the inheritance. These include outstanding bills owed by the decedent, estate taxes and funeral expenses. The presence of living children means the surviving spouse receives an elective share of only a third of the estate. This percentage increases to half if there are no inheriting children.

Regardless of whether the living spouse is disinherited or not, they qualify for support from the decedent’s estate. In Illinois, this support award is a figure no less than $10,000. It provides fiscal support for the nine months following the death of the decedent. The court sets this amount depending on the spouses’ quality of life at the time of death.