Disinherited Spouse

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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How To Disinherit Your Spouse In Illinois

Disinherited Spouse

When you’re getting married you hear the words “’Til Death Do Us Part.” When you contemplate divorce, you don’t want your current spouse to have anything after you die. So, how do you disinherit a spouse in Illinois?

A Divorce Automatically Disinherits A Former Spouse

After a divorce, a spouse is automatically written out of any existing wills.

“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.” 755 ILCS 5/4-7

“The statute not only eliminates a will’s provisions for a decedent’s divorced spouse, but also says “the will shall take effect in the same manner as though the former spouse died before the testator.” The Illinois Supreme Court has commented, critically, that the practical effect of the statute is to rewrite the will.” In re Estate of Zimmerman, 328 NE 2d 199 – Ill: Appellate Court, 2nd Dist. 1975

If there is no will, after a divorce there is no “surviving spouse” so everything goes to the deceased

“If there is no surviving spouse but a descendant of the decedent: the entire estate to the decedent’s descendants per stirpes.” 755 ILCS 5/2-1

Because a former spouse is not entitled to anything upon a party’s death. Sick or ill people seeking a divorce can ask that the divorce be entered immediately and the issues related to the divorce, division of assets, etc., be reserved for later ruling. This “bifurcates” the divorce and prevents the soon-to-be-divorced spouse from making a claim on the soon-to-be-deceased spouse’s assets beyond what they would have received in a divorce.

“Judgment shall not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved or made provision for the allocation of parental responsibilities, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property. The court shall enter a judgment for dissolution that reserves any of these issues either upon (i) agreement of the parties, or (ii) motion of either party and a finding by the court that appropriate circumstances exist.” 750 ILCS 5/401(b)

If you can’t get divorced fast enough to disinherit your spouse, there are other measures you can take to stop or limit your spouse from receiving anything from you after your death.

Write a Will Where Your Spouse Gets Nothing From You

If you don’t have a will, you are said to die “intestate”

If you die intestate in Illinois with no children your spouse automatically gets everything. “If there is a surviving spouse but no descendant of the decedent: the entire estate to the surviving spouse.” 755 ILCS 5/2-1(c)

If you die intestate and you had children, your spouse has to split your estate with the kids 50/50. “If there is a surviving spouse and also a descendant of the decedent: 1/2 of the entire estate to the surviving spouse and 1/2 to the decedent’s descendants per stirpes.” 755 ILCS 5/2-1(a)

If you prepare a will you can give any of your assets to anyone you want. This includes writing your spouse completely out of your will so they will receive nothing.

Being written out of a will or just not liking the terms of a will allows the surviving spouse the power to “renounce the will”

“If a will is renounced by the testator’s surviving spouse, whether or not the will contains any provision for the benefit of the surviving spouse, the surviving spouse is entitled to the following share of the testator’s estate after payment of all just claims: 1/3 of the entire estate if the testator leaves a descendant or 1/2 of the entire estate if the testator leaves no descendant.” 755 ILCS 5/2-8(a)

The will is not automatically renounced because the spouse is written out of the will. The surviving spouse must take affirmative steps to renounce the will.

“In order to renounce a will, the testator’s surviving spouse must file in the court in which the will was admitted to probate a written instrument signed by the surviving spouse and declaring the renunciation. The time of filing the instrument is: (1) within 7 months after the admission of the will to probate or (2) within such further time as may be allowed by the court if, within 7 months after the admission of the will to probate or before the expiration of any extended period, the surviving spouse files a petition therefor setting forth that litigation is pending that affects the share of the surviving spouse in the estate. The filing of the instrument is a complete bar to any claim of the surviving spouse under the will.” 755 ILCS 5/2-8(b)

If the renunciation doesn’t happen correctly, the surviving spouse gets whatever the will left them.

“Failure to renounce is an election to take under the will, and it bars any claim inconsistent with that position.” Remillard v. Remillard, 6 Ill. 2d 567 (1955)

Because of this right to renounce a will, it is extremely difficult to disinherit a spouse without that spouse’s cooperation. There are three ways to get a spouse’s cooperation to agree to not renounce a will: prenuptial agreements, postnuptial agreements and waiver of ERISA.  

Prepare a Prenuptial Agreement That Requires A Spouse To Waive Renunciation Of A Will

A prenuptial agreement can allow to people contemplating marriage to agree to not invoke their right to renounce each other’s wills.

“A right in the estate of a spouse can be relinquished without the use of precise words to that effect, providing the contract contains language sufficiently showing it was the intention of the parties to release such a right in an antenuptial agreement.” In re Estate of Anderson, 552 NE 2d 429 – Ill: Appellate Court, 4th Dist. 1990

If addition to waiving the right to renounce a will, a prenuptial agreement can also waive a spouse’s right to their intestate share of the deceased’s estate if there is no will.

The specific right to renounce must be specifically referenced in the prenuptial agreement.

“[T]he property rights of a spouse acquired through the marital relation will not be taken away by an antenuptial agreement unless the intention to do so is clearly apparent.” Van Cura v. Drangelis, 43 Ill. App. 2d 205, 210 (Ill. App. Ct. 1963)

Waiver of the right to renounce and the right to the intestate share effectively disinherits a spouse who enters into a prenuptial agreement with those waivers. For this reason, a prenuptial agreement takes precedence over a will (or lack thereof).

On the cusp of marriage, few people are focused on death. So waivers of probate rights are rarely included in prenuptial agreements in Illinois.

Postnuptial Agreements To Disinherit A Spouse

After the marriage and before the formal divorce, death may be on the minds of the parties. In this case the parties are allowed to enter into a post-nuptial agreement.

Any agreement the parties enter into after marriage is binding so long as the agreement does not address parenting issues or child support.

“The terms of the agreement, except those providing for the support and parental responsibility allocation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable.” 750 ILCS 5/502(b)

A waiver of a spouse’s rights to their spouse’s estate in a post-nuptial agreement would be considered especially knowing as a spouse would be, presumably, more familiar with their spouse’s estate.

Furthermore, a post-nuptial agreement can define property as non-marital and thus non-divisible if a bifurcated divorce is granted.

Parties can agree that non-marital property will be “property excluded by valid agreement of the parties, including a premarital agreement or postnuptial agreement” 750 ILCS 5/503(a)(4)

Disinheriting A Spouse From A Pension Plan

If a retirement plan has some kind of tax-deferred benefit, that retirement plan is governed by the Employee Retirement Income Security Act of 1974 (ERISA).

ERISA plans have a mandatory spousal benefit if the plan member dies. The only way that a spouse will not receive the spousal benefit post-death is if they file the formal waiver.

Plan participants “may elect at any time during the applicable election period to waive the qualified joint and survivor annuity form of benefit or the qualified preretirement survivor annuity form of benefit (or both)” 29 U.S. Code § 1055(C)(1)(A)(i)

It is not certain that a prenuptial or postnuptial agreement can effectively waive a spouse’s interest in their spouse’s tax-deferred plan.

“Although Federal statute specifies the procedure necessary to assign benefits, the court held that those procedures need not be followed when a nonparticipant is waiving an interest in pension benefits.” In re Estate of Hopkins, 574 NE 2d 230 – Ill: Appellate Court, 2nd Dist. 1991

Future pension benefits are not waivable by agreement. “It is self-evident that a waiver cannot be knowing and considered if the thing to be relinquished has not yet been conceived of by the employer.” Pedro Enterprises, Inc. v. Perdue, 998 F.2d 491, 494 (7th Cir. 1993)

A better policy is to simply require the spouses to file the formal waiver of survivorship rights by including this language in a prenuptial agreement or post-nuptial agreement.

“Following the solemnization of the parties’ marriage, each party shall execute such waivers or other documents as the other may reasonably request to evidence such waiver.”

Ensuring that a spouse or a former spouse will have little to no right to your estate is easy if you can get a quick divorce. If you can’t get divorced quickly, you need to start strategizing. If you’d like to learn more, contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Chicago divorce attorney.