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Renunciation of Will by Surviving Spouse

Illinois law allows a surviving spouse to renounce the will of a spouse by filing a written instrument of renunciation within seven months of the admission of the Will to probate. The effect of the renunciation is to entitle the surviving spouse to receive one-third of the decedent’s probate estate, if the testator leaves a descendant, or one-half if the testator leaves no descendant. However, the renunciation does preclude the renouncing spouse from receiving anything else under the decedent’s will.

Recently, an Illinois appellate court held that the subsequent death of the renouncing spouse does not invalidate the renunciation. The court also held that an assignment by the renouncing spouse of his interest in the estate of the predeceased spouse was valid despite the death of the renouncing spouse. In other words, the mere filing of the renunciation instrument creates a property interest owned by the renouncing spouse which may only be attacked by a claim that the written instrument filed by the renouncing spouse did not comply with the law, or was otherwise legally defective.

About Alan Sohn

Alan E. Sohn received his Juris Doctorate from the College of Law of the University of Illinois. Mr. Sohn has been a partner in both large and smaller law firms and for the past 21 years has been in private practice. Mr. Sohn - Chicago Estate Planning Lawyer and Business Attorney - is admitted to practice law by the Illinois Supreme Court, the Trial Bar of the United States District Court for the Northern District of Illinois, Seventh Circuit Court of Appeals and the United States Supreme Court. He is also a member of the Chicago Estate Planning Council and the Illinois State Bar Association.
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