The Rights of Surviving Spouses and Dependent Children

Preparing an estate plan is a wise decision. However, even with a valid estate plan in place, your express wishes might not be carried out. For example, Illinois probate law affords special rights to surviving spouses and minor children that could contravene specific provisions in your will.

Electing to Take a Statutory Share

The surviving spouse has the right to renounce the decedent’s will in favor of taking a statutory (or elective) share of the decedent’s probate assets. This statutory share amounts to one-third of the estate if there are living descendants (i.e., children) and one-half of the estate if there are no living descendants. If a surviving spouse elects to take a statutory share then he or she must submit that election in writing within seven months after a will is admitted to probate.

The Spouse’s Award

Generally, a surviving spouse is entitled to receive a “spouse’s award” of $20,000, plus an additional $10,000 for each dependent child living with the spouse. (Note that a dependent child may be a minor or an adult.) The spouse may petition the court for a higher amount based on his or her accustomed standard of living. The court will pay the award in three installments during the nine-month period after the decedent’s death. If the surviving spouse dies during this period, the remaining award will be paid to his or her estate, which means that it will be included in that spouse’s probate assets.

Unlike a statutory share, the decedent can prevent the surviving spouse from receiving a spouse’s award by expressly stating in his or her will that the provisions therein are in lieu of the award.

The Child’s Award

If the decedent leaves behind a dependent minor or adult child who does not live with the surviving spouse, that child is eligible for a “child’s award” of $10,000 during the nine-month period after the decedent’s death. The court may award more based on what is reasonably needed for the child’s care.

If there is no surviving spouse, the dependent children are entitled to $10,000 per child plus an additional $20,000 that must be divided equally among the children. Again, the court may choose to award more.

One interesting fact to note is that the surviving spouse or child (if there is no surviving spouse) can elect to receive his or her award in goods instead of money. Here is how that would work:

The decedent did not specifically bequeath all of his or her personal property;

That property is appraised; and

The surviving spouse or child asks the court in writing (within 30 days of being notified of the award) to award this property in lieu of money.

If your spouse or parent dies, and you think you might be eligible for a spouse’s or child’s award, contact one of our Naperville estate planning attorneys today. We will ensure that you receive the proper benefits. We will also help you understand your rights regarding the statutory share. Finally, if you are making an estate plan and want to provide for your loved ones after you are gone, contact us today.

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