Protections for a Spouse and Children in Illinois Probate: Rights, Elections, and Common Pitfalls
Losing a spouse is one of life's most difficult experiences. The last thing anyone wants to worry about in that moment is whether they'll have enough money to get through the next few months, or whether they'll even have a right to their partner's estate at all. Illinois law has some important protections built in for surviving spouses. Here's what you should know.
The Spouse's Award: An Automatic Right to Support
Illinois law guarantees a surviving spouse at least some support from their deceased spouse's estate. This isn't a gift from the will — it's a legal right, and it exists whether or not your spouse left a will at all. Under Article XV of the Illinois Probate Act (755 ILCS 5/15-1), a surviving spouse is automatically entitled to an award from the decedent's estate to cover living expenses for the nine months following death. The minimum award is $20,000, though upon petition, the court may grant a higher amount based on the standard of living the spouse was accustomed to during the marriage.
If the surviving spouse has minor children living with them, the award increases by $10,000 per minor child. For adult dependent children who live with the spouse, are financially dependent on them, and are likely to become a public charge, the award adds a minimum of $5,000 per child.
One important boundary: the spouse's award only reaches estate assets. Property held in trust, accounts with payable-on-death designations, and other non-estate assets are not affected.
Child Awards
Illinois law also provides standalone child awards under 755 ILCS 5/15-2(a)–(b). When there is no surviving spouse, or when a minor child is not living with the surviving spouse, adult and minor children may independently receive an award the court finds reasonable to support their living for nine months after the decedent's death. The minimums are $10,000 per child, plus an additional $20,000 to be split among all the children. Like the spouse's award, these are automatic and non-discretionary.
Priority and Creditor Protections
The child’s award and spouse's award are second-class claims against the estate, meaning it is paid after first-class claims (funeral expenses and estate administration costs) but before estate taxes and general creditor claims. Importantly, the award is also exempt from judgment enforcement, garnishment, or attachment while in the possession of the estate representative.
Taking the Award in Property Instead of Cash
Rather than receiving cash, a surviving spouse may elect to receive "goods and chattels" — tangible personal property from the estate. To make this election, the spouse must file a written selection with the probate court within 30 days of receiving notice of the award (755 ILCS 5/15-1).
When a Will Tries to Replace the Award
A will may expressly state that its provisions for the surviving spouse are intended to be in lieu of the statutory award. However, this only holds if the surviving spouse accepts the will. Under 755 ILCS 5/15-1(b), as discussed below, the surviving spouse retains the right to renounce the will, and if they do, the award remains available to them.
Note also that a valid prenuptial agreement takes precedence over the will, the spouse's award, and the statutory right to renounce. If a prenuptial agreement is in place, it governs.
The Elective Share: Rejecting the Will Entirely
If a surviving spouse is unhappy with what the will provides, Illinois law offers another option: renouncing the will altogether and claiming an elective share of the estate under 755 ILCS 5/2-8(a).
To exercise this right, the surviving spouse must file a written renunciation with the same court handling the probate estate no later than seven months after the will is admitted to probate. A court extension may be available if there is pending litigation.
The elective share is calculated after payment of all just claims against the estate:
One-third of the entire estate, if the decedent left surviving descendants
One-half of the entire estate, if the decedent had no surviving descendants
This is a meaningful distinction from the spouse's award: the award is a second-class claim paid before most other obligations, while the elective share is calculated only after all claims — including creditors — have been satisfied. Depending on the size of the estate and its debts, this difference can significantly affect what the surviving spouse actually receives.
If the surviving spouse renounces the will, any specific bequest they would have received under it is redistributed as though they had predeceased the decedent. All remaining legacies are then adjusted proportionally to account for the elective share taken off the top.
Unmarried Partners: No Automatic Rights
Despite what many people assume, Illinois probate law provides no inheritance rights to unmarried partners — regardless of the length or depth of the relationship. Without a legal marriage, the law treats partners as legal strangers.
Consider a couple who lived together for a decade, shared finances, and built a home together. If one partner dies without an estate plan and the home was not jointly owned with rights of survivorship, the surviving partner has no legal claim to it. An adult child of the deceased could step in and inherit everything.
Illinois does not recognize common law marriages formed within the state. A couple that agreed to be married and lived together without obtaining a marriage license has no recognized marital relationship under Illinois law. The one exception: if a common law marriage was validly formed in a state that does recognize it, Illinois will honor that union.
The practical takeaway for unmarried couples is straightforward: without a will, trust, joint ownership, or beneficiary designations, a surviving partner may be left with nothing.
Stepchildren: Adoption Is the Dividing Line
Stepchildren who have not been legally adopted by their stepparent have no inheritance rights under Illinois intestate law. If a stepparent dies without a will or other estate planning documents, an unadopted stepchild receives nothing by default. Legal adoption changes this entirely. An adopted stepchild is treated identically to a biological child under Illinois inheritance law.
Key Takeaways
Illinois offers real, enforceable protections for surviving spouses — but those protections are shaped by strict deadlines, procedural requirements, and the boundaries of what counts as a legal marriage. For unmarried partners and blended families especially, the default rules can produce results that nobody intended.
The best protection against those outcomes is a well-drafted, current estate plan. If you have questions about spousal rights in a pending probate matter or want to make sure your own planning reflects your wishes, we'd be glad to help.
This article is for general informational purposes only and does not constitute legal advice. Readers should consult a qualified attorney regarding their specific circumstances.