Probate, trust, guardianship and inheritance litigation
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Surviving Spouse Rights Illinois

Illinois surviving spouse rights include:

  • Intestate Share
  • Elective Share
  • Family Allowance

What Are Surviving Spouse Rights in Illinois When There Is No Valid Will?

When an individual dies without a will, they have died intestate.  Under Illinois law, a statutory framework determines how a decedent’s estate will be distributed. This is referred to as Intestate Administration.  If a spouse dies without a Will, the widow has the right to an intestate share. This share is governed by Ill. Comp. Stat. § 755-5/2-1.

Surviving Spouse’s Share – No Children

If the only survivor is a surviving spouse then the surviving spouse receives the entire intestate estate of the decedent.

Surviving Spouse’s Share – Children of the Decedent

If there are descendants of the decedent, regardless of how many, the surviving spouse receives one-half of the estate, with the children receiving the other half.

Elective Share or Renunciation of a Will

What is the Elective Share Under Illinois Law?

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 has the right 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 to Take An 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.

Surviving Spouse’s Right to Allowance

An Illinois surviving spouse has the right to an allowance for nine months after the decedent’s death. The allowance is permitted in a manner suited to the spouse’s condition of life, taking into consideration the condition of the estate, and an addition reasonable sum for the spouse’s proper support. The amount is to be no less than $20,000.  Read Spouse and Child Award in Illinois Probate to learn more.

Requirement to 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.

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