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Blog: What if one party passes away without having settled the marital estate
Date:21 NOV 2018

It is unthinkable but it happens. Divorces can take years and it is a possibility that a party may pass away without having settled the marital estate or finalized the divorce.

Once one party in a divorce dies, the case is dismissed at the next court date. Still, there are many unresolved issues regarding the marital estate that need to be addressed and resolved. Those matters usually addressed in probate court in lieu of domestic relations court.

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The probate law in the U.S. state of Illinois is not concerned with marital versus non-marital assets. Illinois probate law says that you’re not divorced until your divorced. So, in Illinois, you are the spouse of the deceased until the divorce is finalized and will be treated as such under the law.

If your spouse did not leave a will.

If the deceased left no will the legal term for that is “dying intestate.”

The law regarding spouses that die intestate is very simple in Illinois.

“If there is a surviving spouse but no descendant of the decedent: the entire estate to the surviving spouse.” 755 ILCS 5/2-1(c)

That’s it. If your spouse has no children and is still married to you, you get everything.

If your spouse has kids (it does not matter if you had the children together or not), the rule is still simple.

“If there is a surviving spouse and also a descendant of the decedent: 1/2 of the entire estate to the surviving spouse and 1/2 to the decedent’s descendants per stirpes.” 755 ILCS 5/2-1(a)

“Per stirpes” means there is a specific way the children have to figure out who gets what. But, you get half no matter which kid gets what.

If your spouse did leave a will.

If the deceased did leave a will, then you will follow the will…unless you don’t want to.

The surviving husband or wife has the option to “renounce the will.” This means that if a surviving spouse does not like the way the will allocates the deceased’s property the surviving spouse can choose to receive an alternate portion pursuant to the statute.

“If a will is renounced by the testator’s surviving spouse, whether or not the will contains any provision for the benefit of the surviving spouse, the surviving spouse is entitled to the following share of the testator’s estate after payment of all just claims: 1/3 of the entire estate if the testator leaves a descendant or 1/2 of the entire estate if the testator leaves no descendant.” 755 ILCS 5/2-8(a)

What if your spouse named someone else the beneficiary of his or her retirement benefits?

Most 401k or retirement plans require a spouse to sign a waiver to allow you to designate a different beneficiary that is not your spouse. If you have signed a waiver, then the beneficiary status trumps whatever a will says.

At this point we are well beyond my focus, family and divorce law. I would strongly recommend a probate attorney to investigate your rights in this scenario.

What if your spouse named someone else the beneficiary of his or her life insurance?

If your spouse named someone else a beneficiary or their life insurance policy then the beneficiary will get the proceeds of that policy not matter what any statute or will says.

“The designation in accordance with the terms of any insurance…shall not be subject to or defeated or impaired by any statute or rule of law governing the transfer of property by will, gift or intestacy” 755 ILCS 30/1

Again, I am not focused on probate or insurance law so I recommend contacting someone with practical experience as to how disputes in these matters are handled.

What if you are already divorced?

Often, a divorce will be finalized but some issues will be “reserved.” This essentially means that you both agree to deal with those issues later. Most issues regarding the children cannot be reserved and judges frown upon reserving the other issues as “that will just mean you’ll be before me again.” Those judges are right but sometimes, issues should be reserved. I reserved the sale of every house in divorces from 2008 to 2011 because the real estate market was so bad at the time.

If the divorce has reserved items but one party dies, you may be able to go back to divorce court.

“The death of a party subsequent to entry of a judgment for dissolution but before judgment on reserved issues shall not abate the proceedings.” 750 ILCS 5/401(b). Presumably, this means the unresolved divorce issues can proceed against the estate of the deceased. I have never seen this happen in an Illinois domestic relations court and would expect the divorce court to refer you to Probate court despite this clause in the domestic relations statute.

Additionally, most obligations stemming from a divorce will end upon death of a party.

Maintenance (formerly known as alimony) stops upon death of either party.

“[T}he obligation to pay future maintenance is terminated upon the death of either party.” 750 ILCS 5/510(c)

But, death does not release the obligation to pay maintenance if an order for life insurance had been entered earlier in the case.

“Any termination of an obligation for maintenance as a result of the death of the obligor, however, shall be inapplicable to any right of the other party or such other party’s designee to receive a death benefit under such insurance on the obligor’s life.” 750 ICS 5/510(c)

Child support may continue after death as well but there’s no life insurance requirement. Presumably, it’s a claim against the estate of the deceased parent.

“An existing obligation to pay for support or educational expenses, or both, is not terminated by the death of a parent. When a parent obligated to pay support or educational expenses, or both, dies, the amount of support or educational expenses, or both, may be enforced, modified, revoked or commuted to a lump sum payment, as equity may require, and that determination may be provided for at the time of the dissolution of the marriage or thereafter.” 750 ILCS 5/510(d)

The problem is that the claims period is so short. You have the lesser of (i) 6 months from publication of the notice to creditors normally filed shortly after the case or (ii) 2 years from the date of death. Given the short time frame in which to file a claim, the living parent needs to move quickly to protect the rights of the minor children.

You can even request the court order the estate to pay for college after the death of a parent.

“Upon a petition filed before or after a parent’s death, the court may award sums of money out of the decedent’s estate for the child’s support or educational expenses, or both, as equity may require.” 750 ILCS 5/510(e)

The child can also file, themselves, for contribution to their college expenses but only if the other parent is dead.

“In the event of the death or legal disability of a party who would have the right to file a petition for contribution, the child of the party may file a petition for contribution.“ 750 ILCS 5/513(I)


Upon graduating from the University of Illinois College of Law in 2006, Russell Knight began working for a small general practice law firm in Chicago, Illinois. In 2009, Russell resigned from the small law firm and opened up The Law Office of Russell D. Knight. In addition to being licensed in Illinois, Russell is also licensed to practice law in Florida where he maintains an office in Naples, FL.
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