In general, a testator in Illinois can disinherit anyone – including a spouse. In fact, Illinois is one of the few states that allow married people to use estate planning techniques to ensure there is no eligible property left for surviving spouses claiming renunciation shares. Under Illinois law, however, excluded spouses may still be able to claim a portion of the probate estate.
Prenuptial Agreements Take Precedence
When the terms of a prenuptial agreement conflict with a will in Illinois, the prenup takes precedence over any subsequent will. For example, if the spouse expects a large inheritance in the will, but a prior prenuptial agreement specifically disinherits him or her, the prenuptial agreement controls and the surviving spouse receives nothing.
Spousal Rights and the Elective Share
If a surviving spouse is excluded from a will, he or she may “renounce” the will by submitting a petition of renunciation to the probate court. The declaration detailing the excluded spouse’s desire to renounce the will must be filed no later than seven months after the will was filed for probate.
If the spouse successfully renounces the will, he or she is entitled to an “elective share” of the estate. The spouse can collect his elective share after:
- The court determines there is an estate to inherit; and
- All debts and taxes are paid.
If there are surviving children, the surviving spouse may inherit one-third of the estate. If there are no surviving children, the surviving spouse may inherit one-half of the estate.
Additionally, all spouses are entitled to support from the estate of no less than $10,000. Designed to provide support for the first nine months after the decedent dies, the amount of support is calculated based on the standard of living enjoyed preceding the death.
Avoiding Spousal Rights
Illinois allows testators to disinherit their spouses when the title of the property is transferred to a living trust. Since all of the property included in the living trust is excluded from the estate, it is not available to the spouse claiming his or her renunciation share. Additionally, all property in a deceased spouse’s POD and TOD accounts, IRA’s or annuities, and life insurance proceeds is not subject to probate and therefore unreachable to a disinherited spouse.
