Surviving Child’s Rights if There is a Surviving Spouse and Child Lives With the Spouse

Surviving Children’s Rights in Illinois Probate Explained

Video by Attorney Kevin O'Flaherty
Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
October 28, 2019

In this article, we will explain the rights of a surviving child in Illinois probate.  Similar to the award a surviving spouse receives upon the death of his or her spouse, children also have rights and are entitled to certain awards when a parent dies under Illinois law.   A surviving child’s rights depend on whether the child is a minor or is an adult with a disability, whether the deceased individual is survived by a spouse, and whether the child lives with the surviving spouse.  We will explain the surviving child’s rights in each of these circumstances.

Surviving Child’s Rights if There is a Surviving Spouse and Child Lives With the Spouse

Article XV of the Illinois Probate Act states that a surviving spouse is to automatically be awarded of at least $20,000 to cover as support for the nine-month period after the decedent’s death. Additionally, the spouse is to receive another $10,000 per dependent child living with him or her. This includes both minor children and adult children residing with the spouse.  

Rights of Minor Children When there is No Surviving Spouse or When the Children Do Not Live with a Surviving Spouse

If the deceased individual leaves behind minor children who do not live with a surviving spouse, or if there isn’t a surviving spouse, the minor or adult child is entitled to receive a “child’s award” of no less than $10,000. Similar to the surviving spouse’s award, the court may award a higher amount based on the child’s needs or the lifestyle they were accustomed to living when the parent was alive.

Surviving children have unique rights if their parent dies and there is not a surviving spouse. For example, each child would receive the minimum $10,000 in an award, plus $20,000 that’s to be divided equally among the siblings. Also, children may elect to receive their award in “goods and chattels” which are tangible, personal property of the decedent. The child must submit his or her request to receive the “goods and chattels” in writing within 30 days of being notified of the award.  

The child in question must have been a minor at the date of death in order to receive the child’s award.  Like the surviving spouse’s award, the child’s award takes precedence over payment of the creditors of the estate. It will typically be paid for the benefit of the child to the child’s caretaker or some other person as directed by the court.

Surviving Child’s Award for Adult Children With Disabilities Not Residing With a Surviving Spouse

Thus far, we have been discussing the child’s award in the context of minor children.  However, an adult child with a disability who did not live with a surviving spouse at the time of the deceased individual’s death is also entitled to an award.  In order to be eligible for this award, the adult child must have been financially dependent on the deceased individual at the time of the deceased individual’s death and must also be “likely to become a public charge.”  

Like the award for minor children, the court may award an amount necessary to provide for the needs of the adult child.  In the case of disabled adults, the award is to be consistent with the financial support that the disabled adult was receiving from the deceased individual during the deceased individual’s lifetime.  However, the minimum award for a disabled adult child is $5,000, which differs from the $10,000.00 minimum for minor children.  

In order to claim this award, adult children with disabilities (or someone on their behalf) must provide written notice to the estate’s representative that he or she meets the requirements to be entitled to the award.  This notice is time sensitive, meaning that failure to provide the notice by the deadline provided by the probate act will bar the adult child’s claim to the award.    

Surviving Children’s Rights in Illinois Probate Explained
‍Surviving Children’s Rights in Illinois Probate Explained

Children’s Awards in Probate When there is a Will

A parent may leave whatever property he or she wishes and sees fit to the child in a will. If the will was created by the parent before the birth of the child, the child is still entitled to a portion of the parent’s estate. Meaning, a child doesn’t have to be specifically named within a will in order to have their rights of inheritance. The opposite, however, can occur; if a parent lists the child’s name in the will and explicitly states he or she is to be disinherited, the child is not to receive what they’d otherwise be entitled to from the estate.

Surviving Children’s Rights in Intestacy

If a parent dies without having created a will, the estate is considered intestate and is subjected to Illinois intestate succession laws. According to these laws, if a decedent dies without a will, but has a surviving spouse and surviving children, half of the estate is to be divided among the children. If the decedent does not have a surviving spouse, the surviving children will inherit the entire estate.  The children’s award discussed above supersedes the state intestacy laws.  

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Rights of Minor Children When there is No Surviving Spouse or When the Children Do Not Live with a Surviving Spouse

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