Elective Shares, Inheritance, and Wills in Illinois

Planning for what happens to your estate after you are gone is one of the most important things you can do for the people you love. Unfortunately, estate planning in Illinois involves legal rules that many people do not fully understand until it is too late to plan around them. 

One of the most significant and least discussed of these rules is the elective share, a legal protection that can override what a last will and testament says. In 2026, if you are creating or updating an estate plan in Illinois, understanding how elective shares, inheritance laws, and wills work together could make the difference between protecting your wishes and condemning your loved ones to confusion and in-fighting. Our Naperville estate planning attorney can help you prevent this. 

What Is an Elective Share and How Does It Work in Illinois?

An elective share is a legal right that allows a surviving spouse to claim a portion of a deceased spouse’s estate, even if the will leaves the surviving spouse with little or nothing. It exists to prevent one spouse from completely cutting the other out of an inheritance. Illinois law governs this right under 755 ILCS 5/2-8, which gives a surviving spouse the right to renounce the will and instead claim a share of the estate.

Under Illinois law, if a surviving spouse chooses to renounce the will, they are generally entitled to one-third of the deceased spouse’s estate if there are also descendants, or one-half if there are no descendants. This election must be made within seven months of the will being admitted to probate, so timing matters significantly.

Here is what that means in practical terms:

• If your spouse creates a will that leaves everything to their children from a previous marriage and nothing to you, you are not necessarily bound by that decision.
• You have the right to renounce the will and claim your elective share under Illinois law instead.
• Once you make that election, you give up whatever the will did leave you, if anything, in exchange for your statutory share.

The elective share is a powerful protection, but it also has limits. It applies to the probate estate, meaning assets that pass through the will. Assets that transfer outside of probate, such as jointly held property, retirement accounts with named beneficiaries, and life insurance proceeds, are generally not subject to the elective share. This distinction is important and is one reason why comprehensive estate planning involves much more than just writing a will.

How Do Illinois Inheritance Laws Affect What Happens to Your Estate?

When someone dies without a will in Illinois, they are said to have died intestate. In that case, Illinois intestacy laws determine who inherits and in what proportion. These rules follow a specific order of priority based on family relationships, and they do not account for your personal wishes, your relationships, or your circumstances.

Who Inherits Under Illinois Intestacy Law

Under 755 ILCS 5/2-1, the general order of inheritance when there is no will is as follows:

• If there is a spouse and descendants, the spouse and descendants share the estate equally, with the spouse receiving the same share as each child.
• If there is a spouse but no descendants, the spouse inherits everything.
• If there are descendants but no spouse, the descendants inherit everything.
• If there is no spouse and no descendants, the estate passes to parents, then siblings, and so on down the line of relatives.

This default structure may work fine for some families, but for many people it produces outcomes they did not intend. A long-term partner who is not a spouse receives nothing under intestacy law. A child you were estranged from may inherit equally alongside children you were close to. Specific assets you want to go to specific people will be distributed according to a formula, not your intentions.

Why a Will Is Still Essential Even With Other Planning Tools

Some people assume that because they have named beneficiaries on their retirement accounts or hold property jointly with their spouse, a will is unnecessary. That assumption can create serious problems on its own. 

A will covers assets that do not have a designated beneficiary or joint owner, and without one, those assets go through intestacy. A will also allows you to name a guardian for minor children, designate an executor you trust, and leave specific instructions that protect your family and your wishes.

What Should Illinois Residents Know About Creating a Valid Will?

A will is only effective if it is legally valid. Illinois has specific requirements that must be met, and a document that does not meet them may be thrown out entirely, leaving your estate subject to intestacy laws regardless of what you intended.

To be valid in Illinois, a will must be in writing, signed by the person making it, and witnessed by two credible witnesses who are present at the same time. Illinois does not recognize handwritten wills that are not properly witnessed, sometimes called holographic wills, as valid. This means a handwritten note leaving your belongings to your children, no matter how heartfelt, is not a legally enforceable will in this state.

Beyond the technical requirements, a strong will should:

• Clearly identify your beneficiaries and what each one receives.
• Name an executor, the person responsible for carrying out your wishes, who is trustworthy and organized.
• Address what happens if a beneficiary dies before you do.
• Be reviewed and updated after major life events like marriage, divorce, the birth of a child, or significant changes in your assets.

Estate planning is not a one-time task. It is an ongoing process that should change and be updated along with your life.

Call a Naperville Estate Planning Attorney at Gierach Law Firm Today

If you have questions about elective shares, inheritance rights, or creating a will that truly reflects your wishes, the right time to act is now. Contact a Naperville wills and trusts lawyer at Gierach Law Firm by calling 630-756-1160. 

Attorney Denice Gierach puts her 30-plus years of experience to work for every client to help them protect peace and predictability for their families.