When a spouse dies and leaves behind a will that disinherits (or substantially shortchanges) the surviving partner, Illinois law does not leave that survivor without recourse.
Surviving spouses have a meaningful legal tool: the right to reject what the will offers and instead claim a statutory portion of the estate. This is often described as “taking against the will.”
That right is governed by 755 ILCS 5/2-8 and is meant to prevent complete disinheritance of a spouse.
Understanding how this works, what it covers, and where its limits lie is essential for anyone navigating the probate process in Illinois. Here is what surviving spouses and families should know.
What Is the Elective Share in Illinois?
The elective share – sometimes called the statutory share, or taking against the will – is a legal protection that prevents a decedent from completely cutting a surviving spouse out of an inheritance.
In Illinois, a surviving spouse may renounce the will and elect to receive a fixed share of the probate estate instead of whatever (if anything) the will provides.
The share itself depends on whether the decedent left descendants:
- One-third of the net estate if the decedent is also survived by descendants (children, grandchildren, etc.)
- One-half of the net estate if there are no surviving descendants
These percentages apply to the net probate estate: the estate’s value after debts, administrative expenses, and other obligations are satisfied. It also gives the surviving spouse a legal option when the will appears to disinherit them or provides less than the statutory share.
This right is especially important in blended families, second marriages, and estate plans that leave a spouse with less than expected.
How and When to Exercise the Election
Electing to take against the will is not automatic. The surviving spouse must affirmatively file a written renunciation of the will with the probate court.
Critically, this election must be made within seven months of the will being admitted to probate (compared to a six-month time limit for contesting a will in Illinois).
Missing that deadline generally forfeits the right entirely, which is why anyone in this situation should consult an estate or family law attorney without delay.
Once properly filed, the election effectively overrides the will’s provisions as to the surviving spouse, who then receives their statutory share in place of any bequest (or lack thereof) that the will contained.
Does the Illinois Elective Share Apply to Probate Assets Only?
Yes. One of the most important aspects of Illinois elective share law is that it primarily applies to probate assets, not all assets owned by the deceased person.
- Individually owned bank accounts
- Solely owned real estate
- Personal property
- Investment accounts
These are the assets typically administered through the probate court. If there is a valid beneficiary designation on such an asset, however, the asset is not a probate asset and therefore not subject to the elective share, as described in more detail below.
Non-Probate Assets Are Usually Excluded
Illinois does not follow the broader “augmented estate” approach used in some other states. As a result, many non-probate assets are generally excluded from the elective share calculation.
Common examples of non-probate assets include:
- Revocable living trusts
- Life insurance proceeds with named beneficiaries
- Retirement accounts with beneficiary designations
- Joint tenancy assets
- Payable-on-death accounts
This distinction can significantly affect estate planning strategies in the Prairie State.
What About Revocable Trusts?
Assets held in a revocable trust are generally outside the reach of the elective share calculation. Illinois treats them as non-probate property not subject to renunciation under 755 ILCS 5/2-8.
However, courts may examine whether transfers into a trust were made fraudulently or specifically intended to defeat a surviving spouse’s rights. These cases are highly fact-specific and often involve complex probate litigation.
Courts may look at issues such as:
- Whether the deceased retained control over the assets
- The timing of transfers
- Whether the spouse was intentionally deprived of marital rights
- Evidence of bad faith or concealment
These disputes can become legally complicated very quickly for surviving spouses and families.
Statutory Protections for Minor and Dependent Children
While the elective share is exclusively a surviving spouse’s right under Illinois law, the Probate Act provides separate, related protections for minor and dependent children of the decedent. These protections are worth understanding alongside the spousal election.
If a minor child of the decedent does not reside with the surviving spouse at the time of death, the court may allow a reasonable sum from the estate for the child’s proper support for nine months following the decedent’s death, calibrated to both the child’s condition in life and the condition of the estate.
If the child does live with the surviving spouse, the statute channels that child’s support through the surviving spouse’s award under section 15-1 instead. Section 15-1 provides the spouse with an additional amount for the support of minor children who resided with the spouse at death, with a statutory floor of $10,000 for each such child.
Where there is no surviving spouse, the child’s award structure provides at least $20,000 (plus $10,000 per qualifying minor or adult dependent child) to be divided among them. These awards are exempt from judgment enforcement and must be paid from the probate estate in installments within the nine-month post-death period.
Importantly, adult dependent children (those who are unable to support themselves and are likely to become a public charge under 755 ILCS 5/1-2.06) may also qualify for a support award.
These child-focused provisions are not “elective shares” in the technical sense, but they function as floor-level protections overseen by the probate court.
Why You Need an Experienced Illinois Probate Attorney
Illinois elective share laws can dramatically affect estate planning outcomes, especially for blended families or individuals hoping to distribute assets unevenly among heirs.
People sometimes assume that creating a revocable trust or disinheriting a spouse in a Will completely avoids future disputes. In reality, surviving spouse rights can still create litigation risks and probate complications.
If you are dealing with estate administration, a potential elective share decision, or questions about the rights of surviving family members under Illinois law, our compassionate and experienced advocates are here to help you. Reach out to us today!
