Losing a spouse is one of life’s hardest moments. Discovering that a will does not match what you expected can add to the pain. If you are a surviving spouse in Illinois, state law may provide protections. Peck Ritchey, LLC lawyers for spousal rights and renunciation of a will can explain your options and the steps that may be available under Illinois law. The statutory provisions cited below address the surviving spouse’s award and renunciation of a will.
Why Choose Peck Ritchey, LLC for Your Spousal Rights Case
Peck Ritchey, LLC assists clients in Chicago and elsewhere in Illinois with estate and probate matters. The legal team understands that the death of a spouse can raise difficult questions, particularly when a will does not match your expectations. Kerry R. Peck and Timothy J. Ritchey can explain applicable rights in plain language and discuss the steps involved in probate. Whether you are considering renouncing a will or seeking a spousal award, the firm can provide legal advice and representation based on your circumstances. The firm’s case results demonstrate the scope of matters handled in probate and estate litigation.
Understanding Spousal Rights and the Spousal Award in Illinois
Illinois law may provide certain rights to surviving spouses in an estate. Even if a will leaves little or nothing to a surviving spouse, the spouse may have rights under the Illinois Probate Act. A valid agreement or other circumstances, however, may affect those rights.
The spouse’s award is one protection that may be available. It is an amount the court determines is reasonable for the surviving spouse’s support for the nine months after the decedent’s death. The minimum spouse’s award is $20,000. The court may also award at least $10,000 for each minor child of the decedent who resided with the surviving spouse at the time of death.
The spouse’s award is treated as a second-class claim against the estate. It is generally paid after first-class claims, which include funeral expenses and costs of administration. The court directs when the award is paid, in no more than three installments.
What Does It Mean to Renounce a Will and How to File
Renunciation, sometimes called a spousal election, is a legal process through which a surviving spouse rejects the terms of a will and instead seeks a statutory share of the estate. This option may be available when the will leaves the spouse less than the share available under Illinois law.
If the deceased spouse left descendants, the renouncing spouse is generally entitled to one-third of the estate after payment of all just claims. If there are no descendants, the spouse is generally entitled to one-half of the estate after payment of all just claims. The Illinois State Bar Association provides resources on understanding probate and estate rights.
Filing a renunciation requires following specific legal steps. The time frame is strict. The surviving spouse must file a written renunciation with the court in which the will was admitted to probate. This generally must occur within seven months after the will is admitted to probate. A court may allow additional time if the spouse timely petitions for an extension based on pending litigation affecting the spouse’s share.
The process may involve:
- Filing a written notice of renunciation with the probate court in the county administering the estate
- Providing any required notice to the executor, administrator, or other interested parties
- Attending court hearings if they are required to resolve the election or related issues
Spousal Award vs. Renunciation: Which Option Fits Your Situation
The spouse’s award and renunciation serve different purposes. A surviving spouse may be able to seek both, depending on the circumstances. The spouse’s award addresses support during estate administration, while renunciation may allow the spouse to claim a statutory share of the estate. The firm’s decedent’s estate litigation page provides additional information about estate litigation in Illinois.
The decision to accept the will, renounce it, or seek a spouse’s award may depend on several factors:
- The size of the estate
- The value of assets left to you in the will
- Your immediate financial needs
- Whether there are children or other descendants
- Whether a marital agreement or other document affects your rights
How a Prenuptial or Postnuptial Agreement Affects Spousal Rights
A valid prenuptial or postnuptial agreement may affect or waive rights that a surviving spouse might otherwise have under Illinois law. If you and your spouse signed an agreement addressing estate rights, its terms may affect the rights available after death.
Whether an agreement is enforceable depends on its language, how it was executed, the disclosures or waivers involved, and other facts surrounding the agreement. If you believe an agreement may be invalid or was signed under pressure, an attorney can review the circumstances and discuss potential legal options. The American Bar Association Section of Real Property, Trust and Estate Law offers resources on estate planning and marital agreements.
Frequently Asked Questions About Spousal Rights and Renunciation
What is the difference between a spouse’s award and renunciation?
A spouse’s award and renunciation are separate rights under the Illinois Probate Act. A spouse’s award concerns support during the nine months after the decedent’s death, while renunciation concerns the surviving spouse’s statutory share of the estate. Whether both are available depends on the estate and the circumstances.
What happens if I accept property under the will and then renounce?
Accepting property or other benefits under a will may affect the analysis of a surviving spouse’s rights and available options. Before accepting property from an estate, it may be helpful to speak with an attorney about how that decision could affect a possible renunciation.
Can a spouse be completely disinherited in Illinois?
In many cases, a surviving spouse may have the right to renounce a will and seek a statutory share of the estate. However, the availability of that right may depend on the facts, including whether a valid marital agreement waived inheritance rights, whether the renunciation deadline passed, and whether the estate contains probate assets subject to the election.
How long do I have to file a renunciation in Illinois?
A surviving spouse generally has seven months after the will is admitted to probate to file a written renunciation with the court. The court may allow additional time when the surviving spouse timely petitions for an extension based on pending litigation affecting the spouse’s share.
Schedule a Consultation with Peck Ritchey, LLC
If you are a surviving spouse and have questions about your rights under Illinois probate law, Peck Ritchey, LLC can discuss your circumstances. The firm’s attorneys can explain available options and the renunciation process. Call (312) 201-0900 today to schedule a consultation and discuss your case.