What Happens to My Estate Plan During and After My Illinois Divorce?

 Posted on August 19,2022 in Divorce

It is recommended that every adult have an estate plan in place, no matter what their financial status is. An estate plan stipulates what the person’s wishes are when it comes to the distribution of their assets when they die. There are different tools that can be incorporated into an estate plan, including wills and trusts. Unfortunately, one of the things that often get overlooked during and after a divorce is updating an estate plan. So what happens to these plans while the divorce is going on and once it is complete?

What Happens to the Will?

Under Illinois law, just because a spouse has filed a petition for divorce, there is no impact that filing on the estate plan while the process is playing out. This means that a spouse remains the beneficiary of a will until the court has entered a divorce decree. If a spouse was named the executor of the will, that too would remain in effect.

The last thing many people who have filed for divorce would want is their spouse to have control and/or to inherit from their estate should they die while the divorce is pending. But this is exactly what can happen if a divorce is not going to resolve quickly.

There are two legal options a person has in Illinois in this case. The first choice is for the person to change their will and remove their spouse as a beneficiary and executor.

With the second option, a divorce attorney can file what is referred to as a bifurcated divorce. In this type of divorce, the court splits the divorce into two different proceedings. One part is where the court issues an immediate divorce and the second part is where all the issues (i.e., child custody, asset division) are resolved at a later date.

In an especially contentious divorce, many people choose the second option. This is because even if a person change their will, their spouse does have legal options to challenge their removal from the will while the divorce is still pending. They may be entitled to take a portion of the estate because the couple were still legally married, regardless of what the will says. The spouse has the legal option to renounce the will and that would give them either half of the estate or one-third if there are children.

After the Divorce

Once the divorce decree has been entered, Illinois law says that a spouse cannot be the executor of the will or have any part in asset distribution of the estate. But they can still inherit your assets if they are named as beneficiaries. This is why it is critical to redo your will after the divorce if you had not addressed the issue prior.

Other documents that are crucial to change the beneficiary or authorized person are:

• Trusts
• Life insurance policies
• Pensions, annuities
• 401K plans, IRAs
• Power of attorney
• Healthcare proxy

Call a Kane County Divorce Lawyer

If you are going through a divorce, make sure you address your estate plan, as well as any other important financial issues. A skilled St. Charles, IL divorce attorney can help you determine what changes need to be made. Call Shaw Sanders, P.C. at 630-584-5550 to schedule a free and confidential consultation.

Source:

https://www.ilga.gov/legislation/ilcs/documents/075500050K4-7.htm