Protecting Your Family And Future

  1. Home
  2.  » 
  3. Divorce
  4.  » How divorce impacts the probate process

How divorce impacts the probate process

On Behalf of | Apr 19, 2022 | Divorce, Estate Administration/Probate, Estate Planning |

When going through a divorce, wills and estate planning may not be high on your list of matters to address. However, you may wish to make changes to what your ex-spouse will inherit after you pass.

When getting a divorce, the decisions you make regarding your will can impact your future beneficiaries and executors. Updating your will to reflect your wishes is an essential step to consider in Illinois estate planning law. 

What happens during the probate process when the divorce is pending?

There are some circumstances where you, the testator, will decide that your spouse is a beneficiary of your will, allowing them to inherit assets, even when a divorce proceeding is pending. You may wish to give your spouse certain assets to take care of your children, or perhaps they are the best person to manage your estate. In this case, updating your will won’t be necessary. The court will carry out your wishes if you should pass before the divorce proceedings are final.

However, if you do not want your spouse to inherit assets or manage your estate if you pass during the divorce proceedings, you will need to update your will to reflect alternative beneficiaries and executors. 

What happens during the probate process after the divorce?

If you designate your ex-spouse as a beneficiary or executor of your will after divorce proceedings are final, Illinois law 760 ILCS 3/605(b) states that all assets and powers of appointment will be revoked from your ex-spouse. The probate courts treat your will as if your ex-spouse has passed before you. This situation can be problematic, but it is fixable.

If you wish your ex-spouse to be a beneficiary of your assets or executor of your estate without updating your will after the divorce is final, the probate court will not acknowledge this request. However, this can be rectified by updating your will to reflect a date after the divorce was made final.

Another issue may arise when you wish to designate new beneficiaries or alternate executors. The probate courts will have to follow the Illinois rules of intestate succession. The rules of succession when there is no spouse are:

  • Descendants
  • Parents and siblings
  • Grandparents and descendants of grandparents
  • Remote relatives
  • The State of Illinois