When planning your estate in Illinois, you might think you have complete control over who inherits your assets. However, the state’s elective share law can significantly impact your plans, especially if you consider disinheriting your spouse. This law aims to protect surviving spouses from ending up with nothing.
What is an elective share?
Illinois’ elective share law gives a surviving spouse the right to claim even a portion of your estate, even if the will states otherwise. This “elective share” is typically one-third of the estate if the deceased has surviving descendants or one-half if there are no surviving descendants. The law applies to:
- Probate assets typically include things like real estate, personal property, and bank accounts that are solely in your name.
- Non-probate assets include things like life insurance policies, retirement accounts, and jointly owned property.
- Property transferred within the last three years of life
Remember, this law overrides any contrary provisions in your will. Investigating this in your estate planning is crucial to avoid unintended consequences.
How does the elective share affect your estate plan?
The elective share can significantly alter your intended asset distribution. For example, if you planned to leave everything to your children from a previous marriage, your current spouse could still claim their share under this law. You can work around this by:
- Considering setting up trusts
- Making lifetime gifts strategically
- If possible, discuss and agree on estate plans with your spouse
Each option has benefits and disadvantages; what works best depends on your situation.
Tailoring your estate plan: Why good guidance matters
Each family’s situation is unique, and there’s no one-size-fits-all solution. An attorney familiar with Illinois estate law can help you understand how the elective share might affect your specific plans. They can suggest strategies to conduct your wishes while complying with state laws. With the right guidance, you can create an estate plan that protects your assets and passes on the assets you intend.