What Happens to My Will Under Illinois Divorce Laws?

 Posted on March 27, 2017 in Divorce

Divorce is certainly not on your mind when you and your spouse execute wills, but circumstances can change down the road. It hardly seems fair that testamentary bequests may result in a distribution of assets to your former spouse upon your death—and it is not: Illinois law specifically addresses this notion to prevent such a situation. Still, there are factors you will need to consider regarding your will and issues you should discuss with a divorce attorney who also has experience with estate planning.

Revocation of Legacies to Former Spouse

In general, a will may only be revoked by burning it, cancelling it, or taking some other action to destroy it—either personally or by directing someone else to do it. A will executed after the first will also have the effect of revocation, but only as far as the terms are inconsistent. The only other way a will may be revoked is by dissolution of marriage or declaration of invalidity of marriage.

Specifically, divorce or annulment revokes every legacy or interest given to the testator’s former spouse in a will executed before the final order is entered. The entire will is not revoked; however, any testamentary distribution to a former spouse will be treated as if the former spouse died before the testator. In a situation where your former spouse is the only person mentioned in your will, the effect is as if you died without a will at all.

Timing of Marriage

In the event that you name a person as a beneficiary in your will and then marry him or her, the impact is the same. Will provisions related to any former spouse—no matter when you married—will be revoked upon divorce or annulment.

Timing of Divorce

If you are in the middle of the divorce process when you die, and your will still names your soon-to-be ex-spouse, the situation is extremely complicated. According to the statute, only a final order of dissolution of marriage or declaration of invalidity of marriage is sufficient to revoke the bequests to your spouse because your marriage—legally—still existed at your death. To be safe, you may consider revising your will as soon as you file for divorce or annulment.

Review Your Options with an Illinois Divorce Lawyer

Any specific bequests to a spouse are revoked when you divorce, whether you execute your will before or during your marriage. However, that does not mean you should live with the status quo of your estate plan: You could end up dying essentially intestate if you do not address your post-divorce situation and make a new will.

A skilled Illinois divorce attorney has knowledge regarding all the legal implications when you are ending your marriage, and can advise you on what to do about your estate plan. For more information or with any divorce-related questions, please contact the dedicated DuPage County divorce lawyers at Davi Law Group, LLC immediately.

Source:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075500050HArt%2E+IV&ActID=2104&ChapterID=60&SeqStart=5300000&SeqEnd=6750000