Posted on November 12, 2022

Wills After A Divorce In Illinois

Your wedding vows probably included the words “until death do us part.” Even if you get divorced, your relationship with your ex-spouse may not truly end until one of you dies. What is the effect of divorce on a party’s will or estate upon death in Illinois.

A divorce in process will NOT affect a will in Illinois. Only a finalized divorce will affect a will in Illinois.

“It has long been the rule in Illinois that the death of either party to a divorce action prior to final judgment deprives the circuit court of jurisdiction over all aspects of the marriage relationship.” In re Estate of Chandler, 413 NE 2d 486 – Ill: Appellate Court, 2nd Dist. 1980

The only way to bind a not-yet-divorced person to a will is via prenuptial or postnuptial agreement.

“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

A divorce in Illinois will automatically strike the ex-spouse from a will that was executed (signed) before the divorce occurred.

“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

A spouse will be struck from a will even if the will was written before the parties got married.

Illinois courts “hold that the revocation by divorce provision of the Act applies to a disposition to a former spouse, whether the testator executed his will before or after marriage to the beneficiary.” In re Estate of Forrest, 706 NE 2d 1043 – Ill: Appellate Court, 3rd Dist. 1999

Nothing can undo this automatic revocation of a spouse from a will. In Illinois, when you are divorced…you are out of the will.

“Strong public policy upholding the institution of marriage prohibits a man from inheriting from a woman whom he “technically divorced” despite their cohabitation until her death.” In re Estate of Pekol, 499 NE 2d 88 – Ill: Appellate Court, 3rd Dist. 1986

The same applies for other documents that are triggered by the death of a party, like life insurance.

“If a judgment of dissolution of marriage is entered after an insured has designated the insured’s spouse as a beneficiary under a life insurance policy in force at the time of entry, the designation of the insured’s former spouse as beneficiary is not effective unless:

(A) the judgment designates the insured’s former spouse as the beneficiary;

(B) the insured redesignates the former spouse as the beneficiary after entry of the judgment; or

(C) the former spouse is designated to receive the proceeds in trust for, on behalf of, or for the benefit of a child or a dependent of either former spouse.” 750 ILCS 5/503(b-5)(2)

A divorce decree becomes something of a codicil to the will post-divorce. Agreements that the divorced parties entered into will be enforced after the death of the parties in the probate court (in lieu of the divorce court)

A final judgment of dissolution of marriage will be enforced against the language of a post-divorce will. “[P]roperty issues survive the death of a party where the judgment was entered prior to the death. There can be no question here that the wife was entitled during her life following the dissolution to enforce the judgment and to require the sale and distribution of the proceeds in accordance with the terms of the judgment. The estate may now do so in her stead.” In re Marriage of Dowty (1986), 146 Ill. App.3d 675, 678-79, 496 N.E.2d 1252

A division of assets ordered by a court will only be honored if the divorce is finalized. “The settlement of property disputes is only a function of the court’s broader power to terminate the legal relationship which exists between spouses and thus does not come into play unless and until a marriage has been dissolved.” In re Estate of Chandler, 413 NE 2d 486 – Ill: Appellate Court, 2nd Dist. 1980

An Illinois divorce’s “property settlement agreement defined the nature and extent of the rights and liabilities of the parties with respect to the marital real estate, and [a probate] court [is] required to direct performance of those obligations under the decree so as to fully execute its terms.” In re Estate of Coleman, 395 NE 2d 1209 – Ill: Appellate Court, 2nd Dist. 1979

Additionally, obligations to the children can modify a pre-divorce or post-divorce will.

“An existing obligation to pay for support or educational expenses, or both, is not terminated by the death of a parent. When a parent obligated to pay support or educational expenses, or both, dies, the amount of support or educational expenses, or both, may be enforced, modified, revoked or commuted to a lump sum payment, as equity may require, and that determination may be provided for at the time of the dissolution of the marriage or thereafter.” 750 ILCS 5/510(d)

Minor children require a certain bare minimum award from their parents’ estate.

“If a minor child of the decedent does not reside with the surviving spouse of the decedent at the time of the decedent’s death, there shall be allowed to that child, exempt from the enforcement of a judgment, garnishment or attachment in the possession of the representative, a sum of money that the court deems reasonable for the proper support of the child for the period of 9 months after the death of the decedent, in a manner suited to the condition in life of the minor child and to the condition of the estate. The award may in no case be less than $10,000 and shall be paid for the benefit of the child to such person as the court directs” 755 ILCS 5/15-2(a)

Likewise, disabled adult children are also entitled to minimum award from their deceased parents.

“If an adult child of the decedent is likely to become a public charge and was financially dependent on the decedent at the time of the decedent’s death, and if the adult child of the decedent did not reside with the surviving spouse of the decedent at the time of the decedent’s death, there shall be allowed to that adult child, exempt from the enforcement of a judgment, garnishment, or attachment in the possession of the representative, a sum of money that the court deems reasonable, or agreed upon by the surviving spouse and representative of the decedent’s estate or affiant under a small estate affidavit pursuant to Section 25-1, for the proper support of the adult child for the period of 9 months after the death of the decedent, in a manner suited to the condition of life of the adult child and to the condition of the estate. The award shall be at least $5,000 and shall otherwise be consistent with the financial support that the decedent was providing the adult child immediately prior to the decedent’s death. The award shall be paid for the benefit of the adult child to such person as the court or affiant under a small estate affidavit pursuant to Section 25-1 directs.” 755 ILCS 5/15-2(b-5)

To effectuate the support of children after death of a parent, an Illinois divorce “court may require a spouse who was ordered to provide child support to secure the continuation of such support by maintaining certain life insurance policies and naming the child as irrevocable beneficiary of such policies.” In re Estate of Downey, 687 NE 2d 339 – Ill: Appellate Court, 4th Dist. 1997

Outside of the listed case law specific circumstances and surviving child related statutes, Illinois courts will be hesitant to enforce “unlawful court-ordered inheritance” In re Marriage of Rogliano, 555 NE 2d 1114 – Ill: Appellate Court, 5th Dist. 1990.

If you are concerned with what will happen to your will before, during or after your Illinois divorce, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.

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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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