There’s a lot of selfish reasons to enter into a prenuptial agreement or a postnuptial agreement: you want to keep your stuff or you don’t want pay your spouse support in the future.
There is one, relatively, noble reason to enter into a prenuptial agreement or a postnuptial agreement, to preserve your heir’s inheritance in case you get divorced.
If a married person with children dies without a will the current spouse automatically gets 50% of their estate, “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)
A Surviving Spouse’s Right To Renounce Their Deceased Spouse’s Will
If a married person has a will, they can leave their assets to whomever they want…unless their spouse ‘renounces’ 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)
“[I]f competent, the survivor has an absolute right to renounce the will of the deceased spouse by filing a renunciation.” First Nat’l Bank of Danville v. McMillan, 12 Ill. 2d 61, 66-67 (1957)
The current surviving spouse always gets the opportunity to renounce the will…unless they have previously agree not to.
“[A]bsent a valid prenuptial or postnuptial agreement the wishes of a surviving spouse can trump a testator’s intentions.” In re Estate of Feinberg, 235 Ill. 2d 256, 266 (Ill. 2009)(citations omitted)
Prenuptial and Postnuptial Agreements Effect On The Surviving Spouse’s Right To Renounce A Will
Prenuptial agreements are called ‘premarital agreements’ in the Illinois Marriage and Dissolution of Marriage Act.
“”Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” 750 ILCS 10/2(1)
“The Illinois Premarital Agreement Act allows parties to waive or modify their marital rights by entering into a valid premarital agreement, with limited grounds provided to find the agreement to be unenforceable…By entering into a valid premarital agreement, parties agree that their enumerated rights at dissolution are no longer governed by applicable statutes where those rights are validly modified or waived in the agreement.” In re Marriage of Woodrum, 115 NE 3d 1021 – Ill: Appellate Court, 3rd Dist. 2018
Prenuptial agreements allow for contracting what each party must put in their will in the future.
“Persons competent to contract may execute an agreement prior to marriage settling in advance the rights of the respective spouses in the property of each other at the date of either’s death.” Eule v. Eule, 320 NE 2d 506 – Ill: Appellate Court, 1st Dist. 1974
Postnuptial agreements have no statutory constraints in Illinois and can cover anything, including agreements as to how the parties must write their wills.
“If the parties decide to settle their property rights by mutual agreement rather than by statute, they are bound to the terms of their agreement.” In re Marriage of McLauchlan, 2012 IL App (1st) 102114, ¶ 21.
Whether by prenuptial agreement or postnuptial agreement spouses in Illinois can enter into contracts with each other which waives the right to renunciate a will.
“It is clear, however, that, under the law, a wife can effectively bind herself during the lifetime of her husband to accept the provisions of her husband’s will and thereby be estopped from renouncing it after his death. We have held that such a contract should be considered by strict rules, and that it must be founded upon an adequate consideration, and established under the clearest and most convincing evidence.” Golden v. Golden, 393 Ill. 536, 539-40 (Ill. 1946)
A prenuptial or postnuptial agreement could even trump a subsequent will that awarded anything to the spouse who waived their capacity to renounce the will.
“We do not think because testatrix made provision in the will for the care of her husband she abrogated and canceled the contract, nor that appellee, by claiming the benefits of the will, is precluded from insisting upon the validity of the agreement. He was not a party to the contract, but as heir-at-law and a devisee it was for his benefit and he was interested in it.” Kirchner v. Morrison, 320 Ill. 236, 244 (Ill. 1926)
Estoppel As A Bar To A Surviving Spouse’s Right To Renounce A Will
Absent a prenuptial or postnuptial agreement explicitly addressing how the parties will leave their assets in their respective wills, the surviving spouse must act like the will is valid during the time period before he or she must officially renounce the will.
There is a minimum of seven months where a surviving spouse can contemplate if they want to renounce their deceased spouse’s 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” 755 ILCS 5/2-8(b)
If the surviving spouse acts like the existing will is in effect during this period, a court may “estop” them from invoking the right to renunciate their deceased spouse’s will.
Estoppel is “a bar that prevents one from asserting a claim or right that contradicts what one has said or done before” Black’s Law Dictionary (11th ed. 2019)
“To work an estoppel, the acts alleged to constitute it must be unequivocally inconsistent with [the surviving spouse’s] right afterward to renounce the provisions of the will and elect to take under the statute.” Canavan v. McNulty, 328 Ill. 388, 395 (Ill. 1927)
It would be difficult for a surviving spouse to do anything during those 7+ months that would deny their right to renounce the will. Only one case in Illinois has ever estopped the right to renounce a will.
“[Surviving spouse] had lived on the property for a considerable period of time, after his wife’s death, in a manner consistent with an intent to accept the provisions of the will, and his conduct should be deemed an election to accept the terms of the will” Hunter v. DeMay, 124 Ill. App. 2d 429, 438 (Ill. App. Ct. 1970)
Estate planning and divorce are two entirely different bodies of law but the savvy divorce lawyer will now how to work with a savvy estate planner. To speak with an experienced Illinois divorce attorney, contact my Chicago, Illinois family law firm today.
