When you get a divorce, Illinois law treats your ex-spouse as having died before you for purposes of your will and estate plan. Any provisions in favor of your ex-spouse under your will are revoked, including appointment of your ex-spouse as the executor of your estate.
Under Illinois Law An Ex-Spouse Is Treated As If They Had Died Before You Under Your Will or Trust
755 ILCS 5/4-7 (b) sets forth the effect of divorce on your will and estate in Illinois and states:
No will or any part thereof is revoked by any change in the circumstances, condition or marital status of the testator, except that dissolution of marriage or declaration of invalidity of the marriage of the testator revokes every legacy or interest or power of appointment given to or nomination to fiduciary office of the testator’s former spouse in a will executed before the entry of the judgment of dissolution of marriage or declaration of invalidity of marriage and the will takes effect in the same manner as if the former spouse had died before the testator.
In plain English, your will is not revoked under Illinois law just because you get a divorce. However, any bequest to your ex-spouse is revoked. Any power of appointment to your ex-spouse is revoked. Any nomination as executor of your Illinois estate or other fiduciary role under your will is revoked as a result of the divorce. Basically, when you get divorced, Illinois law acts like your spouse died before you for purposes of your will.
760 ILCS 3/605(b) sets forth the effect of divorce on your Illinois Trust:
Unless the trust instrument or the judgment of judicial termination of marriage expressly provides otherwise, judicial termination of marriage of the settlor of a trust revokes every provision that is revocable by the settlor pertaining to the settlor’s former spouse in a trust instrument or amendment executed by the settlor before the entry of the judgment of judicial termination of marriage of the settlor and any such trust shall be administered and construed as if the settlor’s former spouse had died upon entry of the judgment of judicial termination of marriage.
What Happens If You Want Your Ex-Spouse To Inherit Your Assets?
It may be that even though you got a divorce, you want your ex-spouse to inherit your assets under your will, or even to serve as the executor of your estate. This can sometimes be the case when children are involved.
In order for your ex-spouse to inherit under your will, you will need to execute a new will after your divorce is final. This shows that you intended for your ex-spouse to benefit from your Illinois will, even though you got a divorce.
Will Provisions In Favor of Your Spouse Remain In Effect Until Your Illinois Divorce Is Final
Divorces can often take an extended amount of time. Under Illinois law, provisions for the benefit of a spouse are not revoked until the divorce is final.
If a party dies during the divorce process, all provisions under the will in favor of the spouse are valid. Therefore, it is a good idea to update your will to reflect your intent even before your divorce is final. Working in conjunction with an Illinois divorce lawyer and an Illinois probate lawyer is often a prudent idea.
What Effect Does Divorce Have On a Life Insurance Policy in Illinois?
Since January 1, 2019, Illinois law has provided that a designation in a life insurance policy to a divorced spouse, made before the divorce became final, is revoked by the divorce. 750 ILCS 5/503(b-5)(2) states:
(2) If a judgment of dissolution of marriage is entered after an insured has designated the insured’s spouse as a beneficiary under a life insurance policy in force at the time of entry, the designation of the insured’s former spouse as beneficiary is not effective unless: (A) the judgment designates the insured’s former spouse as the beneficiary; (B) the insured redesignates the former spouse as the beneficiary after entry of the judgment; or (C) the former spouse is designated to receive the proceeds in trust for, on behalf of, or for the benefit of a child or a dependent of either former spouse.
Illinois law will step in to invalidate gifts made to an ex-spouse in a will made prior to your divorce. However, it is always a good idea to update your estate plan and all of your beneficiary designations to make sure that your assets are going exactly where you want them to.