CHICAGO, IL – Divorce has significant legal consequences for wills and estate plans in Illinois, but only after the divorce is finalized. Chicago divorce attorney Russell D. Knight of the Law Office of Russell D. Knight (https://rdklegal.com/wills-after-a-divorce-in-illinois/) is providing guidance on how divorce revokes provisions benefiting former spouses, when prenuptial or postnuptial agreements can override these rules, and how divorce decrees affect property distribution upon death.
According to Chicago divorce attorney Russell D. Knight, a divorce in process will not affect a will in Illinois, and only a finalized divorce will automatically strike the ex-spouse from a will executed before the divorce occurred. Illinois courts have long held that the death of either party to a divorce action before final judgment deprives the circuit court of jurisdiction over all aspects of the marriage relationship.
Chicago divorce attorney Russell D. Knight has written more than 750 articles breaking down Illinois divorce and family law issues in clear, practical language. His insights have been published by the Illinois State Bar Association and quoted by national outlets including NBC News, Newsweek, Inc. Magazine, and Parents Magazine. He has also completed advanced litigation and trial-skills training through NITA and the National Family Law Trial Institute.
“Illinois law automatically revokes every legacy, interest, or power of appointment given to a former spouse in a will executed before the entry of the judgment of dissolution of marriage,” Knight explains. “The will takes effect as if the former spouse had died before the testator, and nothing can undo this automatic revocation once the divorce is finalized.”
Under 755 ILCS 5/4-7, dissolution of marriage or declaration of invalidity of the marriage revokes every legacy or interest or power of appointment given to the testator’s former spouse in a will executed before the judgment. This revocation applies whether the testator executed the will before or after marriage to the beneficiary, and Illinois courts have consistently upheld this provision.
The only way to bind a not-yet-divorced person to estate provisions is through a prenuptial or postnuptial agreement. Persons competent to contract may execute agreements prior to marriage, settling in advance the rights of the respective spouses in each other’s property at the date of either’s death. However, without such agreements, pending divorces do not affect will provisions, and spouses remain beneficiaries until divorce is finalized.
“Strong public policy upholding the institution of marriage prohibits individuals from inheriting from former spouses whom they technically divorced despite continued cohabitation,” Attorney Knight notes. “Once the divorce is final, the ex-spouse is completely out of the will regardless of the parties’ subsequent relationship.”
The automatic revocation of former spouses from wills extends to other documents triggered by a party’s death, including life insurance policies. Under 750 ILCS 5/503(b-5)(2), if a judgment of dissolution of marriage is entered after an insured has designated the spouse as a beneficiary, the designation is not effective unless the judgment designates the former spouse as beneficiary, the insured redesignates the former spouse after entry of the judgment, or the former spouse is designated to receive proceeds in trust for a child or dependent of either former spouse.
Divorce decrees function as codicils to wills post-divorce, and agreements the parties entered into will be enforced after death in probate court rather than divorce court. Where a domestic relations order has been entered, the trial court retains jurisdiction to enforce its order as further performance by the parties is often contemplated. Final judgments of dissolution of marriage will be enforced against the language of post-divorce wills, and estates may enforce property settlements in place of the deceased party.
Property settlement agreements define the nature and extent of parties’ rights and liabilities with respect to marital real estate, and probate courts are required to direct performance of those obligations under divorce decrees to fully execute their terms. However, divisions of assets ordered by courts will only be honored if the divorce is finalized, as property settlement is only a function of the court’s broader power to terminate the legal relationship between spouses.
Obligations to children can modify pre-divorce or post-divorce wills. Under 750 ILCS 5/510(d), existing obligations to pay support or educational expenses are not terminated by a parent’s death. When a parent obligated to pay such expenses dies, the amounts may be enforced, modified, revoked, or commuted to lump sum payments as equity requires.
Minor children require minimal awards from their parents’ estates. Under 755 ILCS 5/15-2(a), if a minor child does not reside with the surviving spouse at the decedent’s death, the child shall be allowed a sum of money the court deems reasonable for proper support for nine months after death, with awards of at least $10,000. Disabled adult children who were financially dependent on the decedent and likely to become public charges are entitled to minimum awards of at least $5,000 for nine months of support.
Knight advises individuals concerned with what will happen to their wills before, during, or after an Illinois divorce to consult with experienced family law counsel. Courts may require spouses ordered to provide child support to secure continuation of such support by maintaining life insurance policies naming children as irrevocable beneficiaries. Outside specific circumstances and child-related statutes, Illinois courts are hesitant to enforce unlawful court-ordered inheritance provisions.
About Law Office of Russell D. Knight:
The Law Office of Russell D. Knight is a Chicago-based law firm dedicated to family law, including divorce, property division, and estate planning matters. Led by attorney Russell D. Knight, the firm represents clients throughout Chicago and Illinois. For consultations, call the office.
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