Marc J. Blumenthal now offers video conferencing for initial estate-planning meetings. Click here to schedule


I’m ready to get started

Can I Exclude My Spouse from Inheriting My Estate While My Divorce Is Pending?

Can I Exclude My Spouse from Inheriting My Estate While My Divorce Is Pending?

testament last will and dollar bills
Writing testament my last will on a paper with several $100 dollar bills

People in Illinois must take action to exclude their spouses from inheriting their estates if death precedes the finalization of their divorces. Many married people name their spouses as a sole or partial beneficiary of their estates when creating their wills. Only the final divorce or annulment order or a revised will can revoke bequests to the surviving spouse. Surviving spouses who are disinherited will still have the option to renounce the decedent’s will and claim a portion of the estate.

A Surviving Spouse’s Right to Inherit

Even if a divorce is pending, surviving spouses in Illinois have a right to inherit from the estates of their deceased partners. Should one spouse pass away prior to the finalization of a divorce, the court action is dismissed and the marriage is not dissolved. Therefore, the estate may be distributed in accordance with the decedent’s will or the state’s probate laws.

After filing for divorce, people may exclude their spouses from inheriting from their estates by changing their wills to exclude them. By leaving an updated will that disinherits their soon-to-be ex-spouses, people may bypass the intestacy laws, naming others as the beneficiaries of their estates instead of their spouses. Should a couple have a prenuptial agreement that specifies neither spouse has inheritance rights, the surviving spouse may also be excluded from inheriting from the estate of the decedent.

Renunciation of a Will

The right of renunciation allows people to inherit from the estates of their deceased spouses, even if they have a divorce action pending and were disinherited in a valid will. The Illinois Probate Act of 1975 allows a surviving spouse not named in a deceased spouse’s will to elect to inherit a percentage of his or her estate. After satisfying any outstanding bills, estate taxes, and funeral expenses, a surviving spouse is entitled to one-half of the remaining estate of a deceased spouse with no children or one-third of the remaining estate if the deceased spouse also has surviving children.

Avoiding the Right of Election

Although people cannot deprive their soon-to-be exes of inheriting from their estates while their divorces are pending, they can take action to limit the assets available to claim. For example, property placed in a living trust is not considered part of an estate for probate purposes and would not be subject to renunciation. Additionally, surviving spouses cannot claim property held through joint tenancy with someone other than themselves.

    Get Help Today!

    Simply fill out the our online form, and one of our attorneys or staff members will contact you to schedule your appointment.

    We value your privacy. Your information will not be shared without your permission.

    The use of the internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

    I have read and understand the disclaimer

    Memberships & Associations

    • logo
    • logo
    • logo
    • logo
    • logo
    • logo