Illinois Probate Law: A Surviving Spouse’s Rights to the Decedent Spouse’s Estate

When a spouse dies without a will, we call this dying “intestate” and the surviving spouse will have the right to an intestate share. Intestacy laws vary by state, but in Illinois, if the decedent has no other descendants, the surviving spouse will receive the entire estate after all just claims are fully paid. If the decedent has descendants, the surviving spouse will receive one-half of the estate and the descendants will receive the other one-half of the estate.

But what if your spouse has a will and he or she cut you out of it? Are you really left with nothing? Most states are prepared for these scenarios and have what is referred to as an elective share law. These laws determine what a spouse is entitled to from their decedent spouse’s estate. A surviving spouse usually “elects” to take their portion of the decedent spouse’s estate when they have been left out of the decedent spouse’s will entirely or given a lesser amount than what he or she would receive under this elective share law.

Illinois Elective Share

In Illinois, a surviving spouse can elect to renounce the decedent spouse’s will and will then be entitled to, after all just claims are fully paid, the following:

• 1/3 of the estate if the decedent has descendants; or
• 1/2 of the estate if the decedent has no descendants.

Avoiding the Elective Share Statute in Illinois

If you don’t want your spouse to have the option of electing to take a share from your estate, there are some to protect your estate. Again, these laws vary by state, but the elective share law in Illinois only applies to assets in the probate estate, or assets that are owned in the decedent’s name alone. This means that all assets excluded from the estate are not up for grabs by a surviving spouse. This would include all assets transferred to a living trust, life insurance proceeds, IRA’s, and property owned as a joint tenant with someone other than the surviving spouse.

Spousal Award

            A spouse is also entitled to a “spousal award” in Illinois. This is an amount that the court finds is a reasonable amount to support the surviving spouse for a period of 9 months. At a minimum, the surviving spouse’s award will be $20,000.00, plus an additional $10,000.00 for each dependent living with the surviving spouse. This award can be in cash, or the surviving spouse can elect to receive tangible personal property from the decedent’s estate.