How Does a Legal Separation Affect a Spouse’s Inheritance Rights?

 Posted on June 17, 2020 in Divorce

Here is a common question regarding divorce in Illinois: If I divorce my spouse, can he or she still inherit property under my will? The short answer is that if you did not bother to change your will after the divorce–and you really should–then any language naming your ex-spouse as a beneficiary or executor is automatically invalidated. The remainder of your will remains valid; the law simply acts as if your former spouse had predeceased you. Of course, you are always free to sign a new post-divorce will naming your ex-spouse as a beneficiary or executor; this rule only applies to pre-divorce wills. If a person dies without a will, his or her estate is subject to distribution under Illinois intestacy law. Intestacy usually provides that the surviving spouse will inherit all or part of the estate, depending on whether or not the deceased had any children or heirs. But as with the rules governing wills, a former spouse’s right to intestate succession ends with the entry of a divorce judgment.

Property Settlement Waives Husband’s Rights to Inherit from Wife’s Estate

A less common question is what happens in the event of a legal separation? Although a separation involves many of the same formalities as a divorce, the parties remain legally married. So what happens when one spouse dies during the separation? Does the surviving spouse still have inheritance rights?
In some cases, the parties will already have a property settlement in place to address such contingencies. Take this recent decision from the Illinois Second District Appellate Court, In re Estate of Holms. This case involved a husband and wife who legally separated in 2017. At the time, an Illinois judge approved a judgment of legal separation that incorporated a property settlement agreement (PSA). Among other provisions, the PSA included a “release of claims,” which states the spouses “mutually release and forever discharge each other from all…claims against each other’s property,” except as otherwise provided for in the PSA or the court’s legal separation judgment.
The wife passed away in May 2018. She did not have a will. The husband then claimed he still had the right to inherit from her estate under Illinois intestacy law. The wife’s daughter filed an objection. She insisted the PSA’s release of claims barred the husband from inheriting anything from the wife’s estate.
A Lake County judge sided with the husband, holding that nothing in the PSA “referenced the possibility of death or clearly indicated the intent to surrender or waive” the surviving spouse’s inheritance rights. The daughter appealed this decision. The Second District took her side, holding that “the language of the judgment for legal separation and the PSA is susceptible to only one reasonable interpretation,” namely that the spouses “intended to waive all interest in each other’s property, including any spousal inheritance rights.” Put another way, the PSA was a “final settlement as to all property rights as a result of the marriage.”

Contact a Naperville Divorce Lawyer 

It is important to consider the effects that a divorce or legal separation will have on your estate planning going forward. Therefore, you may or may not want to make adjustments to it before ending your marriage. Skilled Will County legal separation attorney Ronald L. Hendrix can provide you with advice on this and many other legal issues. Contact his office today at 630-355-7776 to schedule your free consultation.

Source:
https://courts.illinois.gov/Opinions/AppellateCourt/2019/2ndDistrict/2190139.pdf