Q: I wrote my Will eight years before I got married, and it leaves everything to my siblings. Is that Will still legally enforceable now that I'm married? 
 

Mariserg: Yes that Will is still legally enforceable now that you are married, but your spouse can renounce the Will pursuant to 755 ILCS 5/2-8 of the Probate Act of 1975. By renouncing your Will, your spouse will receive part of your estate and your siblings will receive less than they would have under your Will. 

Q: What exactly is ‘spousal renunciation', and how much of my estate could my spouse claim if they use it? 
 

Mariserg:  A spousal renunciation is when a spouse “renounces” their spouse's Will because they did not leave them anything in their Will, either by mistake or on purpose. Your spouse claims the following pursuant to the law: 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. 

Q. Is there a deadline for my spouse to renounce my Will, or can they decide years after I pass away? 

Mariserg: Yes, there is a deadline for your spouse to renounce your Will. It is generally seven months after the admission of the will to probate pursuant to 755 ILCS 5/2-8(b). However, the court can also  grant your spouse additional time. 

Q: This is my second marriage, and I want my assets to go to my kids from my first marriage. Can my new spouse override that even with a Will in place? 
 

Mariserg: Your spouse can renounce your Will if you do not leave them anything. However, that does not mean that your children from your first marriage will receive nothing. A will renunciation means that your spouse receives 1/3 of your estate and the rest will go to your children from your first marriage. 

Q: My new spouse and I are both keeping our existing Wills from before we met, which name our adult children as the sole beneficiaries. Is that a problem? 
 

Mariserg: It is only a problem if your spouse renounces your Will, as they legally have the right to, unless there is a prenuptial agreement in place. 

Q: If my spouse renounces my Will, does that affect only their inheritance, or does it change what my other legatees receive too? 
 

Mariserg: It changes what everyone receives as per statute, your spouse can receive 1/3 of the estate if there are descendants of the decedent or ½ if there are no descendants of the decedent. 

Q: We eloped quickly and never updated our Wills. If one of us dies now, does Illinois treat us as if we have no valid Will at all? 
 

Mariserg: No, Illinois law gives your spouse the opportunity to renounce your Will as your Will is valid, even if years old. 

Q: My spouse and I have a trust, not just a Will. Do the same marriage and renunciation rules apply, or is a trust treated differently? 
 

Mariserg: A trust is treated differently as it cannot be renounced like a Will can be. 

Q: What's the single more important thing I should do with my Will if I just got married or am about to get married? 
 

Mariserg: Update your Will and make sure your wishes are outlined in your Will. Also talk to an experienced attorney about a prenuptial agreement if it's your second marriage. 

Talk to an Illinois Estate Planning Attorney 

Every estate plan is different, and details such as when a will was created, whether it was updated after marriage, and the assets involved can affect how Illinois law applies. If you are unsure whether a marriage changes, revokes, or affects the terms of a will, speaking with a knowledgeable Illinois estate planning attorney can help you understand your rights and avoid costly mistakes. For legal assistance and guidance, contact us at Katherine L. Maloney & Associates, LLC at 815-556-2057.