Taxation & Estate Planning

Renunciation of a Will, Part 1: The Basics

By Joel A. Schoenmeyer

Let's say you are married, and your husband dies. Even worse, in reviewing his papers, you find that you are left nothing (or a very small amount) in his Will. What are your rights?

One of the most basic rights you have as surviving spouse is the right of renunciation, as set forth in Section 2-8 of the Illinois Probate Act. This allows you to set aside the Will's provisions, and to receive a set portion of your spouse's estate (1/3rd if your spouse leaves a descendant, 1/2 if he doesn't).

A few caveats:

1. The above portions are AFTER the payment of any and all claims. So, if your spouse has a $100,000 probate estate and $80,000 of claims are filed against his estate, you will get 1/3 or 1/2 of $20,000.

2. Renunciation applies only to the probate estate (property your husband owned in his own name at his death). So your husband could have a $100,000 probate estate along with $10,000,000 in non-probate assets (left to a girlfriend?), and you would still only get 1/3 or 1/2 of $20,000.

Full post as published by Death and Taxes Blog on December 02, 2008 (boomark / email).