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.