What protections does a spouse have in probate? Is a spouse entitled to the estate of their deceased husband or wife? When someone dies without a will, does their estate automatically go to their spouse? Estate Planning attorney Kevin O'Flaherty explains surviving spouse's rights in Illinois probate in this episode of Learn About Law. Have any questions that weren't answered here? Let us know in the comment section! Subscribe to BLTV for daily Learn About Law videos: https://www.youtube.com/channel/UCY4QhGg-zwgUIthoK3EdyjA
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In this article we explain a surviving spouse’s rights in Illinois probate, including the Illinois Surviving Spouse’s Award, surviving spouse’s right to renounce the will, and the effect of prenuptial agreements on the rights of a surviving spouse.  

In this article we explain a surviving spouse’s rights in Illinois probate, including the Illinois Surviving Spouse’s Award, surviving spouse’s right to renounce the will, and the effect of prenuptial agreements on the rights of a surviving spouse.  

The Surviving Spouse’s Award in Illinois Probate

The Illinois Probate Act states in Article XV that the surviving spouse of a recently deceased person is entitled to an award from that person’s estate in an amount the court finds reasonable to support the living of the surviving spouse for a period of 9 months after the decedent’s death. In Illinois, $20,000 is the minimum amount that can be awarded to a surviving spouse. The spouse may petition for a higher amount based on the standard of living he or she was accustomed to when their spouse was alive.

If the surviving spouse has children living with him or her, whether they be minor or adult children, he or she is entitled to an additional $10,000 for each dependent. This is also intended for the support of living for 9 months following the decedent’s death.

The surviving spousal award is a “second-class” claim against the estate. This means it can only be awarded after first-class claims have been taken care of; first-class claims include funeral expenses or other related expenses. The spouse’s award does, however, take precedence over estate taxes and creditor’s claims.

The court will decide how the spouse will be awarded the money. It could be that the entirety of the award will be given to the spouse in full at once, or be paid in installments (no more than three) throughout the nine-month period.

The Act also contains a provision stating that a surviving spouse may elect to have his or her award in cash or in “goods and chattels.” Goods and chattels refer to the tangible personal property of the decedent that a spouse may wish to receive as an award instead of cash. The surviving spouse must file a written selection of what goods they’d like to receive to the court within 30 days of the notice of the award to make this election.

The Surviving Spouse’s Right to Renunciation of the Will in Illinois Probate

The surviving spousal award is automatic, meaning he or she does not have to prepare documentation or file for the award. It’s also non-discretionary under Illinois law, making the spouse entitled to the award regardless of estrangement or other marital factors. However, if the decedent created a will that specifically states that his or her spouse shall not receive the award, the surviving spouse will not receive even the minimum amount of spouse’s award.

The surviving spouse does have the right to renounce the will. He or she can seek “spousal election” by filing a written renunciation no more than 7 months after the will was admitted to probate, unless the surviving spouse files a petition to extend time based on pending litigation. This renunciation must be filed with the same court as the probate estate.  If the surviving spouse renounces the will, he or she will receive a ⅓ share of the decedent’s estate if the decedent has any surviving descendants and a ½ share of the estate if the decedent does not have surviving descendants.  

If the surviving spouse renounces the will, any other interest that the surviving spouse would have received under the will is distributed as if the surviving spouse had died before the decedent.  Any other legacies granted by the will will be apportioned pursuant to the terms of the will in light of an across-the-board reduction of the estate due to the share that the surviving spouse’s exercise of his or her right of renunciation.  

‍Surviving Spouse’s Rights in Illinois Probate: Surviving Spouse Award and Renunciation of the Will

What is the Difference Between the Surviving Spouse’s Right to Renounce the Will and the Surviving Spouse’s Award in Illinois Probate?

A key difference between the surviving spouse’s right to renounce the will and the surviving spouse’s award is that, since the surviving spouse’s award is a second class claim, this award is given priority over any debts of the decedent or the estate.  The surviving spouse’s award essentially comes off of the top of the estate before the rest of the estate is divided.  On the other hand, when a surviving spouse renounces a will, the surviving spouse takes his or her statutory share of whatever is left of the estate after the payment of claims that have a higher priority, such as those of creditors.

Therefore, renunciation of the will makes sense if the estate is large enough that the spouse’s statutory share after renunciation would be larger than the spouse’s award after all priority claims are paid.  For a more in-depth discussion of the priority of probate claims, check out Illinois Probate Claims Explained.

Prenuptial Agreements and Surviving Spouse’s Rights in Illinois

If a couple had a prenuptial agreement that included provisions on spousal inheritance when one spouse passes away, this can significantly influence the surviving spouse’s rights. The State of Illinois recognizes a prenuptial agreement as having precedence over a will as well as the surviving spouse’s award and the surviving spouse’s statutory right to renounce the will.

This means that if a will states that the surviving spouse will not receive the spouse’s award upon the decedent’s death, yet a prenuptial agreement states a surviving spouse is entitled to certain assets, the surviving spouse will receive those assets. The opposite, however, can also occur. If a will includes the spouse, but a prenuptial agreement was created and waives inheritance rights of a surviving spouse, the spouse will receive nothing.   You can learn more about prenuptial agreements, including when they are invalid by checking out Illinois Prenuptial Agreements Explained.

November 16, 2020
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