Can I Exclude My Spouse From Inheriting My Estate While My Divorce Is Pending?

By Author: Marc J. Blumenthal
Total Articles: 11
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A Surviving Spouse’s Right to Inherit
Even if a divorce is pending, surviving spouses in Illinois have a right to inherit from the estates of their deceased partners. Should one spouse pass away prior to the finalization of a divorce, the court action is dismissed and the marriage is not dissolved. Therefore, the estate may be distributed in accordance with the decedent’s will or the state’s probate laws.

After filing for divorce, people may exclude their spouses from inheriting from their estates by changing their wills to exclude them. By leaving an updated will that disinherits their soon-to-be ex-spouses, people may bypass the intestacy laws, naming others as the beneficiaries of their estates instead of their spouses. Should a couple have a prenuptial agreement that specifies neither spouse has inheritance rights, the surviving spouse may also be excluded from inheriting from the estate of the decedent.

Renunciation of a Will
The right of renunciation allows people to inherit from the estates of their deceased spouses, even if they have a divorce action pending and were disinherited in a ...
... valid will. The Illinois Probate Act of 1975 allows a surviving spouse not named in a deceased spouse’s will to elect to inherit a percentage of his or her estate. After satisfying any outstanding bills, estate taxes, and funeral expenses, a surviving spouse is entitled to one-half of the remaining estate of a deceased spouse with no children or one-third of the remaining estate if the deceased spouse also has surviving children.

Avoiding the Right of Election
Although people cannot deprive their soon-to-be exes of inheriting from their estates while their divorces are pending, they can take action to limit the assets available to claim. For example, property placed in a living trust is not considered part of an estate for probate purposes and would not be subject to renunciation. Additionally, surviving spouses cannot claim property held through joint tenancy with someone other than themselves.