A man came to see me convinced he had everything figured out. He was in a second marriage, his relationship with his wife had soured, and he wanted to leave everything to his children from his first marriage and nothing to her. He had even written a will to that effect. He was genuinely surprised when I told him that his will, by itself, could not accomplish what he wanted. In Illinois, a surviving spouse has a legal right to claim a share of the estate no matter what the will says.
This catches a lot of people off guard. We tend to think a will is the last word — that we can leave our property to whomever we choose. For most beneficiaries that is true. But a spouse occupies a protected position in American law, and Illinois is no exception. You cannot simply write your husband or wife out of your will and expect that to be the end of it.
The right to renounce the will
Illinois gives a surviving spouse the right to renounce the deceased spouse's will. The relevant statute is 755 ILCS 5/2-8. When a spouse renounces the will, they give up whatever the will left them and instead take a statutory share of the estate. The amount depends on whether the deceased spouse left descendants — children, grandchildren, and so on.
If the deceased spouse left descendants, the surviving spouse who renounces is entitled to one-third of the entire estate. If the deceased spouse left no descendants, the surviving spouse's share rises to one-half of the entire estate. This share is taken after just claims against the estate are paid, and the act of filing the renunciation completely bars any claim the spouse would have had under the will itself.
In plain terms: the man in my office could leave his wife out of his will, but she could walk into court, renounce that will, and claim one-third of his estate anyway. His careful plan to disinherit her would simply be overridden.
How and when the spouse claims it
The renunciation is not automatic — the surviving spouse has to take action. Illinois law requires the spouse to file a written, signed renunciation with the court where the will was admitted to probate, and there is a deadline. Generally the spouse must file within seven months after the will is admitted to probate, with limited extensions available in certain circumstances. A spouse who misses the window loses the right and is stuck with whatever the will provided. Because this plays out in the probate process, anyone in this situation should get advice promptly rather than assuming there is unlimited time.
Why the law works this way
This rule isn't an accident or a loophole. It reflects a deliberate policy that runs through almost every state: marriage is an economic partnership, and a surviving spouse should not be left destitute by the stroke of a pen. Many couples build their wealth together, and the law protects the survivor's stake in that shared effort. Whether or not you agree with the policy in your particular case, it is the law, and a sensible estate plan works with it rather than pretending it isn't there.
The right way to handle it
So what do you do if you genuinely want to limit what your spouse receives — in a second marriage, a blended family, or a relationship that has run its course? You do not rely on a will alone, because a will alone won't hold.
The honest tool is a marital agreement. A valid prenuptial or postnuptial agreement can waive a spouse's right to renounce the will and accept a different arrangement, as long as it is entered into properly and with the right disclosures. Couples in second marriages often use these agreements to protect children from a prior marriage while still providing fairly for each other. Done right, an agreement gives everyone certainty and avoids a fight in probate court later.
There are other planning tools as well — certain trust arrangements, beneficiary designations, and lifetime transfers can shape how property passes — but these have to be designed carefully, because the spousal protection is robust and courts look skeptically at transparent attempts to evade it. This is not a do-it-yourself area. The plans that work are the ones built deliberately, with full knowledge of the spouse's rights.
The takeaway
If you assume your will lets you leave your spouse with nothing, you are in for the same surprise the man in my office had. Illinois protects surviving spouses through the right to renounce the will, and that right will override your wishes unless you have planned around it the right way. The solution is not a more strongly worded will — it is a thoughtful plan, and often a marital agreement, put in place while everyone is alive and able to sign.
If you are in a second marriage, a blended family, or any situation where your wishes for your spouse are more complicated than "everything," let's talk it through before you rely on a document that won't do what you think. We help families across Bloomington-Normal, Lincoln, and Central Illinois with exactly these questions as part of our estate planning practice.