Article XV of the Illinois Probate Act controls awards to the surviving spouse and children of a decedent, otherwise known as allowances. The purpose of these awards is to make sure that the surviving spouse and children are taken care of during the period immediately after the decedent’s death, during the administration of the estate.
What Is The Surviving Spouse’s Award Under the Illinois Probate Act?
755 ILCS 5/15-1 addresses the surviving spouse’s award.
A surviving spouse is allowed “a sum of money that the court deems reasonable for the proper support of the surviving spouse for the period of 9 months after the death of the decedent…”
The surviving spouse’s award must be a minimum of $20,000.
The award can be paid in a lump sum, or in no more than 3 separate installments.
Surviving Spouse’s Award With Minor Children Or Adult Dependent Children
If the surviving spouse resides with minor children of the decedent, the surviving spouse is entitled to an additional award for the proper support of the minor children for the 9 month period after decedent’s death.
The award for minor children must be no less than $10,000 for each minor child of decedent’s residing with the surviving spouse. Therefore, a surviving spouse residing with two of decedent’s minor children would be entitled to a minimum of $40,000.
For each adult child of the decedent who is likely to become a public charge and was financially dependent on the decedent and resided with the surviving spouse at the time of decedent’s death, the spouse is entitled to a sum of money for the proper support of the adult child for the 9 month period after decedent’s death. The amount is a minimum of $5,000.
Is The Surviving Spouse Always Entitled To The Spouse’s Award Under Illinois Law?
No, the surviving spouse is not always entitled to the spouse’s award under the Illinois Probate Act. 755 ILCS 5/15-1(b) states:
The surviving spouse is entitled to the award unless the will of the decedent expressly provides that the provisions thereof for the surviving spouse are in lieu of the award and the surviving spouse does not renounce the will.
What Is The Child’s Award Under The Illinois Probate Act?
Just like the surviving spouse, decedent’s children are also entitled to an award when a parent passes away.
A surviving child’s award depends on whether the child is a minor, a financially dependent adult child, the existence of a surviving spouse, and if the child lives with the surviving spouse.
Minor Child Not Living with the Surviving Spouse
If a minor child of the decedent does not reside with the surviving spouse of the decedent at the time of the decedent’s death (most often a child from a previous relationship), the child is entitled to a sum of money for the proper support of the child for the 9 month period after decedent’s death.
The award may in no case be less than $10,000 and shall be paid for the benefit of the child to such person as the court directs.
No Surviving Spouse But Minor or Dependent Adult Children
If decedent was survived by minor children but no surviving spouse, the minor children are entitled to a minimum of $10,000 each just like when there is a surviving spouse. However, the minor children are also entitled to an additional sum of no less than $20,000 that shall be divided equally among those children or apportioned as the court directs.
An adult dependent child would be entitled to $5,000 paid for the benefit of the adult child.
How Does An Adult Dependent Child Receive An Award After A Parent’s Death In Illinois?
In order for an adult child to be eligible for an award under Article XV of the Illinois Probate Act, 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.”
The adult child (or someone acting on their behalf), must also affirmatively claim the award by providing written notice to the representative of the estate that the adult child meets the requirements to receive the award.
This notice is time sensitive, meaning that if it is not timely filed the adult child’s claim to the award is barred under the Illinois Probate Act. Within 30 days after receiving notice of a potential award from the representative of the decedent’s estate or from the affiant under a small estate affidavit, the adult child, agent or guardian must provide written notice asserting that the adult child was financially dependent on the decedent at the time of the decedent’s death and that the adult child did not reside with the surviving spouse at the time of the decedent’s death.
How Do You Apply For the Spouse Or Child Award?
The personal representative of the estate shall apply to the court to make the spouse or child award when it is not waived or barred under Illinois law. Then, the representative shall mail or deliver a copy of the award to each person in whose favor the award is made. 755 ILCS 5/15-3.
The surviving spouse or child does not have to proactively file for the award.
The surviving spouse, personal representative, heir or legatee, or creditor can petition to increase or diminish the award as justice requires.
Selection of How Award Is Received
Under the Illinois Probate Act, the surviving spouse, and the children if there is no surviving spouse, has the right to receive the amount of the award in money, or upon election, to accept payment thereof in while or in part in good and chattels of the decedent that were not specifically bequeathed, at their appraised value.
The selection is made in writing by the surviving spouse within 30 days after the spouse is notified in writing of the allowance of the award. The selection must be filed with the court.