Illinois law affords surviving spouses important rights and benefits.  In order to preserve all rights and benefits granted under the law, a surviving spouse must adhere to time-sensitive deadlines provided by statute. The failure to meet one of the probate deadlines can cause a surviving spouse to lose one or more spousal entitlements.

What if a Spouse Dies Without a Will?

  • INTESTATE. When an individual dies without a will, intestate succession law will govern.  Under Illinois law, a statutory framework determines how a decedent’s estate will be distributed.  This is referred to as Intestate Administration.
  • INTESTATE SHARE.  If a spouse dies without a Will, the surviving spouse receives an intestate share.
  • SHARE OF SURVIVING SPOUSE – NO CHILDREN OF DECEDENT.  If the only survivor is a surviving spouse then the surviving spouse receives the entire intestate estate of the decedent. See Ill. Comp. Stat. § 755-5/2-1(c).
  • SHARE OF SURVIVING SPOUSE – CHILDREN OF DECEDENT.  If there are descendants of the decedent, all of whom are the children of the surviving spouse, regardless of how many, the surviving spouse receives one-half of the estate, with the children receiving the other half. See Ill. Comp. Stat. § 755-5/2-1(a).

Elective Share or Renunciation of a Will

  • ELECTIVE SHARE. Under Illinois law, the surviving spouse has a right to denounce the decedent’s will, whether or not the will contains any provision for the surviving spouse.  The surviving spouse is entitled to take a share, after payment of all just claims, of one-third of the entire estate if the decedent leaves a descendant, or one-half of the entire estate of the decedent leaves no descendant. Ill. Comp. Stat. § 755-5/2-8(a).
  • DEADLINE FOR FILING FOR THE ELECTIVE SHARE.  The surviving spouse must file in the probate court where the will was admitted to probate a written instrument, signed by the surviving spouse, which states a declaration of the surviving spouse’s renunciation of the will.  The surviving spouse must file this renunciation within seven (7) months.  Ill. Comp. Stat. § 755-5/2-8(b). The Court may permit additional time upon a petition by the surviving spouse.

Requirement to File a Known Will

  • File a known will.  Under Illinois law, upon the death of the testator any person who has the testator’s will in his possession is required to file it with the clerk of the court of the proper county within 30 days.

What If I Cannot Afford a Probate Lawyer to Represent Me In Procuring My Surviving Spouse Rights?

  • Often, probate lawyers who handle a large volume of surviving spouse cases will be flexible and consider arrangements on a contingency basis or on a pay-at-the-end basis, where asurviving spouse client has no up-front payment obligation.