Illinois Surviving Spouse Rights

Illinois gives a surviving spouse protections a will cannot erase. The spouse can renounce the will and take one-third of the estate if the decedent left a descendant, or one-half if the decedent left none, under 755 ILCS 5/2-8. The spouse can also claim the spouse's award of at least $20,000 under 755 ILCS 5/15-1. Separate rules reach a transfer on death instrument and the family homestead.

Illinois does not call this an elective share in the statute. The Probate Act of 1975 calls it renunciation of the will, and the clock on it is short: seven months from the day the will is admitted to probate. This page walks through each right, the numbers behind it, and the deadlines that end it. If you are still mapping the whole estate, start with the Illinois probate guide.

What a Surviving Spouse Can Claim

Right	Statute	What the spouse gets
Renunciation of the will	755 ILCS 5/2-8	1/3 of the estate with a descendant, 1/2 with no descendant
Spouse's award	755 ILCS 5/15-1	Nine months of support, floor of $20,000 plus $10,000 per minor child
Renunciation of a transfer on death instrument	755 ILCS 27/66	1/3 of the real property transferred with a descendant, 1/2 with none, on a separate filing
Homestead occupancy after death	735 ILCS 5/12-902	The homestead exemption continues for the surviving spouse while he or she occupies the homestead
Intestate share (no will)	755 ILCS 5/2-1	1/2 with descendants, the whole estate with none
Dower and curtesy	755 ILCS 5/2-9	Abolished in Illinois. No life estate in the spouse's land

The rest of this page takes each row in turn.

Renouncing the Will: One-Third or One-Half

A will that leaves the surviving spouse nothing does not end the matter. Under 755 ILCS 5/2-8(a), a spouse who renounces the will takes a fixed statutory share of the testator's estate after payment of all just claims:

One-third of the entire estate if the testator leaves a descendant.
One-half of the entire estate if the testator leaves no descendant.

The statute says the share applies "whether or not the will contains any provision for the benefit of the surviving spouse." A generous will and a silent will are treated the same way. The spouse compares the two outcomes and picks one.

Two features of the share are worth understanding before you run the math. First, 2-8(a) gives the spouse a share of the estate after payment of all just claims, so debts, funeral costs, and administration expenses come out first. Whether the spouse's award is also deducted before the fraction is computed is the piece 2-8 leaves unstated, and the worked example below covers it. Second, Illinois fixes the fraction. It does not slide with the length of the marriage the way the augmented-estate systems in some other states do, and the Probate Act has no augmented-estate section that pulls nonprobate transfers back into the pot. Assets that pass by beneficiary designation, joint tenancy, a transfer on death instrument, or a funded revocable trust pass outside probate, so the share under 2-8 starts from the probate estate. Whether a particular lifetime transfer can still be reached on some other theory is an Illinois case law question rather than a statutory one, and it belongs with a licensed Illinois attorney.

Two other rules cut the other way, and they are why a nonprobate label does not end the analysis. A transfer on death instrument carries its own renunciation right under 755 ILCS 27/66, covered below. And under 760 ILCS 3/505(a)(5) of the Illinois Trust Code, the property of a trust that was revocable at the settlor's death is subject to the settlor's creditors, the costs of administering the estate, funeral expenses, and statutory awards to a surviving spouse and children, to the extent the probate estate is inadequate to satisfy them. Section 755 ILCS 27/85 applies that same treatment to the beneficiary of a transfer on death instrument. So the spouse's award can reach revocable-trust and transfer on death property where the probate estate cannot cover it, even though the renounced share cannot. Ask a licensed Illinois attorney how those transfers affect your own numbers before you decide.

How to File the Renunciation

The mechanics come from 755 ILCS 5/2-8(b). The surviving spouse files a written instrument, signed by the spouse and declaring the renunciation, in the court where the will was admitted to probate. The filing window is seven months after the admission of the will to probate.

The court can allow more time in one narrow situation. If litigation is pending that affects the spouse's share, the spouse may petition for an extension, and that petition has to be filed inside the original seven months or inside any extension already granted. Miss the window with no pending petition and the right is gone.

Filing the instrument is a one-way door. The statute makes the filing "a complete bar to any claim of the surviving spouse under the will," so a spouse cannot renounce and then also collect a legacy the will left behind.

What Renunciation Does to Everyone Else

Renunciation reshuffles the rest of the will. Under 755 ILCS 5/2-8(c), a future interest that was set to take effect after an interest given to the spouse takes effect as though the spouse had died before the testator, unless the will expressly provides that in case of renunciation the future interest is not accelerated. The exception is narrow. A general contrary provision does not defeat acceleration; only an express anti-acceleration clause does. Under 755 ILCS 5/2-8(d), when the other legacies grow or shrink because of the renunciation, the court apportions the loss or the gain among the legatees in proportion to the amount and value of their legacies when it settles the estate.

That second rule matters to the family. A renunciation does not quietly come out of one beneficiary's pocket. The court spreads the effect across the will's gifts.

A Transfer on Death Instrument Has Its Own Renunciation

Renouncing the will under 2-8 does not reach real property that passed by a transfer on death instrument. That property has a separate rule at 755 ILCS 27/66. Unless the surviving spouse waived the right, a transfer on death instrument may be renounced by the owner's surviving spouse, who is then entitled to a one-third interest in the real property transferred if the owner left a descendant, or a one-half interest if the owner left none.

The mechanics differ from 2-8 in both place and timing, which is the part that catches people. Under 27/66(b), the written instrument is filed in the recorder of deeds office where the transfer on death instrument is recorded, not in the probate court, and it is filed within seven months after the date of the owner's death, not seven months after a will is admitted to probate. A court with jurisdiction over the real property may allow additional time under Section 2-8 of the Probate Act. One exception sits in 27/66(a): there is no right to renounce a transfer on death instrument that transfers the owner's interest to the trustee of a trust that is for the sole benefit of the surviving spouse during his or her lifetime. Our Illinois transfer on death instrument guide covers the instrument itself.

The Spouse's Award

Renunciation is about a share of the estate. The spouse's award is about paying the bills while the estate is open. Under 755 ILCS 5/15-1, the surviving spouse of an Illinois resident receives a sum the court finds reasonable for the spouse's proper support for the nine months after the death, plus a further sum for minor children of the decedent who lived with the spouse when the decedent died. The award can never be less than $20,000, plus at least $10,000 for each such minor child.

Section 15-1(a-5) adds a separate award the body of most summaries leaves out. Where an adult child of the decedent is likely to become a public charge, was financially dependent on the decedent, and resided with the surviving spouse when the decedent died, the court allows a further reasonable sum for that adult child's support over the same nine months, at least $5,000 for each such adult child. The $10,000 per-child figure above applies to minor children who lived with the spouse, not to adult children.

The award is the spouse's own property and is exempt from the enforcement of a judgment, garnishment, or attachment while the representative holds it. It is paid in up to three installments on the schedule the court directs. Under 755 ILCS 5/18-10, the surviving spouse's or child's award sits in the second class of claims, behind only funeral and burial expenses, administration expenses, statutory custodial claims, and certain guardianship fees. The award is not confined to the probate estate. Under 760 ILCS 3/505(a)(5) and 755 ILCS 27/85, statutory awards to a surviving spouse and children reach the property of a trust that was revocable at the settlor's death, and property that passed by a transfer on death instrument, to the extent the probate estate is inadequate to satisfy them.

The award and the will interact in one place. Under 755 ILCS 5/15-1(b), the spouse keeps the award unless the will expressly states that what it leaves the spouse stands in lieu of the award and the spouse does not renounce. A spouse who renounces the will keeps the award either way. Our Illinois spouse's award guide covers the award, the adult-dependent-child add-on, and the child's award under 755 ILCS 5/15-2 in full.

Renunciation only applies to a will. If the decedent died without one, the spouse's share comes from 755 ILCS 5/2-1, again after all just claims are paid.

Family situation	Surviving spouse takes
Surviving spouse and a descendant	1/2 of the entire estate, with 1/2 to the descendants per stirpes
Surviving spouse, no descendant	The entire estate

Illinois splits the estate evenly between the spouse and the descendants, and the descendants take per stirpes, meaning by family branch. Illinois does not distinguish between children of the marriage and children from an earlier relationship in this section. See the Illinois intestate succession guide for the full order of descent.

No Dower, No Curtesy

Some states still give a surviving spouse a life interest in the deceased spouse's real estate. Illinois does not. 755 ILCS 5/2-9 says there is no estate of dower or curtesy, and it extinguished the inchoate rights that existed on January 1, 1972. If you read an older article promising an Illinois widow a dower interest in the family farm, the article is out of date.

When a Spouse Loses These Rights

Three situations cut off a spouse's claim.

A premarital agreement, and sometimes a marital agreement. The Illinois Uniform Premarital Agreement Act lets parties contract about the disposition of property at death and about making a will or trust to carry out the agreement, under 750 ILCS 10/4. That Act reaches premarital agreements only. Section 750 ILCS 10/2(1) defines a premarital agreement as one between prospective spouses made in contemplation of marriage and effective upon marriage, so a postnuptial or marital agreement signed during the marriage sits outside the Act and is governed by Illinois common law instead. A signed waiver of the renunciation right can hold up either way. Have an Illinois attorney read the agreement before you assume it does or does not bind you.

Divorce. Under 755 ILCS 5/4-7(b), a judgment of dissolution or a declaration of invalidity of the marriage revokes every legacy, interest, power of appointment, and fiduciary nomination the will gave the former spouse, and the will takes effect as if the former spouse had died first. The section reaches a will executed before the entry of that judgment. A will the testator signs after the dissolution is not revoked by it. A former spouse is not a surviving spouse and has no renunciation right.

Causing the death. Illinois has a slayer statute at 755 ILCS 5/2-6. A person who intentionally and unjustifiably causes another's death takes nothing by reason of that death, whether as heir, legatee, beneficiary, joint tenant, or survivor, and whether the property would pass by intestacy, by a testamentary or nontestamentary instrument, or by renunciation. The property passes as if that person had died first. A conviction for first or second degree murder of the decedent settles the question conclusively.

A Worked Example

Say a will leaves the surviving spouse $15,000, the decedent left two adult children, and the estate is worth $600,000 after just claims are paid.

Under the will, the spouse takes $15,000.
Renouncing the will gives the spouse one-third of the estate, because the decedent left descendants. That is roughly $200,000 under 755 ILCS 5/2-8(a).
The spouse's award is separate money for support, and the spouse keeps it after renouncing. The court sets a reasonable sum for nine months, never below the $20,000 floor in 755 ILCS 5/15-1. The sequence is where the statute stops short. Section 2-8(a) gives a renouncing spouse a share of the estate "after payment of all just claims," and Section 18-10 ranks the award as a second-class claim, but neither section states in so many words that the award comes off the top before the one-third is computed. The $600,000 above is written as a figure already net of claims, which is the ordering Illinois practitioners commonly use. That ordering rests on case law and practice rather than on a sentence in the Probate Act, so treat the arithmetic here as an illustration and have a licensed Illinois attorney run the real numbers.
The other legacies shrink to fund the renounced share, and the court apportions that loss among the legatees in proportion to their gifts under 755 ILCS 5/2-8(d).

Renouncing looks better here by a wide margin. Change the facts and the answer flips. If the will already leaves the spouse more than one-third, renouncing costs the spouse money, and the seven-month window quietly closes with no harm done.

Deadlines to Watch

Action	Deadline	Statute
File the renunciation instrument	7 months after the will is admitted to probate	755 ILCS 5/2-8(b)
Petition for more time to renounce	Inside that same 7 months, and only where litigation affecting the share is pending	755 ILCS 5/2-8(b)
File a renunciation of a transfer on death instrument	7 months after the date of the owner's death, filed with the recorder of deeds	755 ILCS 27/66(b)
Assert an adult child's dependency for the added award	30 days after the adult child receives written notice from the representative or affiant	755 ILCS 5/15-1(a-5)
Elect to take the award in goods rather than cash	30 days after written notice that the award was allowed	755 ILCS 5/15-4

Confirm every date with the clerk of the Circuit Court handling the estate. County practice on notice and filing differs, and Illinois counties file electronically through eFileIL.

Frequently Asked Questions

Can a spouse be disinherited in Illinois?

Not entirely. A will can leave the spouse nothing, but the spouse can renounce the will under 755 ILCS 5/2-8 and take one-third of the estate if there is a descendant, or one-half if there is not. The spouse's award under 755 ILCS 5/15-1 is separate money on top of that.

How long does an Illinois spouse have to renounce a will?

Seven months after the will is admitted to probate, under 755 ILCS 5/2-8(b). The court can extend that period only if the spouse petitions inside the seven months and litigation affecting the spouse's share is pending.

Does Illinois have an elective share?

Illinois has the same idea under a different name. The Probate Act calls it renunciation of the will, and the share is a fixed fraction of the estate rather than a percentage of an augmented estate that grows with the length of the marriage.

Does renouncing the will cancel the spouse's award?

No. The award under 755 ILCS 5/15-1 belongs to the spouse whether or not the will is renounced. A will can only displace the award by expressly saying its gift to the spouse stands in lieu of the award, and even then only if the spouse does not renounce.

Is a surviving spouse still entitled to dower in Illinois?

No. 755 ILCS 5/2-9 abolished dower and curtesy and extinguished the inchoate rights that existed on January 1, 1972.

What Usually Drives the Analysis

Whether renunciation makes sense in a given estate is a question for a licensed Illinois attorney, because it turns on the will, the inventory, and what passes outside probate. These are the factors that generally shape it:

The probate date. The clerk of the Circuit Court holds the date the will was admitted to probate. The seven-month renunciation period under 755 ILCS 5/2-8(b) runs from that date, not from the death. The separate seven-month period for renouncing a transfer on death instrument under 755 ILCS 27/66(b) does run from the date of death, and it is filed with the recorder of deeds.
A lieu-of-award clause in the will. Only an express statement that the gift stands in lieu of the spouse's award affects the award under 755 ILCS 5/15-1(b).
The comparison itself. What the will gives the spouse, set against one-third or one-half of the estate after just claims, measured against the representative's inventory.
Nonprobate assets. Beneficiary designations, joint tenancy, and a funded trust sit outside the estate the renounced share is measured against. The spouse's award is different: under 760 ILCS 3/505(a)(5) and 755 ILCS 27/85 it reaches revocable-trust and transfer on death property when the probate estate is inadequate.
The timing of the spouse's award. It is a second-class claim under 755 ILCS 5/18-10, so it is generally addressed with the representative during administration rather than at closing.
Any premarital agreement. A premarital agreement may waive the renunciation right under 750 ILCS 10/4. A marital agreement signed during the marriage falls outside that Act and is governed by common law. Either way the effect depends on its terms.

This guide is general information about Illinois estates, not advice for your situation. Confirm anything that affects your estate with the clerk of your Circuit Court or a licensed Illinois attorney before you rely on this page.

Sources:

Title: 755 ILCS 5/2-8, Renunciation of will by spouse. Publisher: Illinois General Assembly (Illinois Compiled Statutes). Publication Date: Current official code, accessed 2026-07-19. URL: https://www.ilga.gov/Legislation/ILCS/Fulltext?DocName=075500050K2-8
Title: 755 ILCS 5/2-9, Dower and curtesy. Publisher: Illinois General Assembly (Illinois Compiled Statutes). Publication Date: Current official code, accessed 2026-07-19. URL: https://www.ilga.gov/Legislation/ILCS/Fulltext?DocName=075500050K2-9
Title: 755 ILCS 5/2-1, Rules of descent and distribution. Publisher: Illinois General Assembly (Illinois Compiled Statutes). Publication Date: Current official code, accessed 2026-07-19. URL: https://www.ilga.gov/Legislation/ILCS/Fulltext?DocName=075500050K2-1
Title: 755 ILCS 5/2-6, Person causing death. Publisher: Illinois General Assembly (Illinois Compiled Statutes). Publication Date: Current official code, accessed 2026-07-19. URL: https://www.ilga.gov/Legislation/ILCS/Fulltext?DocName=075500050K2-6
Title: 755 ILCS 5/15-1, Spouse's award. Publisher: Illinois General Assembly (Illinois Compiled Statutes). Publication Date: Current official code, accessed 2026-07-19. URL: https://www.ilga.gov/Legislation/ILCS/Fulltext?DocName=075500050K15-1
Title: 755 ILCS 5/15-4, Selection. Publisher: Illinois General Assembly (Illinois Compiled Statutes). Publication Date: Current official code, accessed 2026-07-19. URL: https://www.ilga.gov/Legislation/ILCS/Fulltext?DocName=075500050K15-4
Title: 755 ILCS 5/18-10, Classification of claims against decedent's estate. Publisher: Illinois General Assembly (Illinois Compiled Statutes). Publication Date: Current official code, accessed 2026-07-19. URL: https://www.ilga.gov/Legislation/ILCS/Fulltext?DocName=075500050K18-10
Title: 755 ILCS 5/4-7, Revocation - revival. Publisher: Illinois General Assembly (Illinois Compiled Statutes). Publication Date: Current official code, accessed 2026-07-19. URL: https://www.ilga.gov/Legislation/ILCS/Fulltext?DocName=075500050K4-7
Title: 750 ILCS 10/4, Illinois Uniform Premarital Agreement Act, Content. Publisher: Illinois General Assembly (Illinois Compiled Statutes). Publication Date: Current official code, accessed 2026-07-19. URL: https://www.ilga.gov/Legislation/ILCS/Fulltext?DocName=075000100K4
Title: 750 ILCS 10/2, Illinois Uniform Premarital Agreement Act, Definitions. Publisher: Illinois General Assembly (Illinois Compiled Statutes). Publication Date: Current official code, accessed 2026-07-19. URL: https://www.ilga.gov/Legislation/ILCS/Fulltext?DocName=075000100K2
Title: 755 ILCS 27/66, Renunciation by spouse. Publisher: Illinois General Assembly (Illinois Compiled Statutes). Publication Date: Current official code, accessed 2026-07-19. URL: https://www.ilga.gov/Legislation/ILCS/Fulltext?DocName=075500270K66
Title: 755 ILCS 27/85, Rights of claimants. Publisher: Illinois General Assembly (Illinois Compiled Statutes). Publication Date: Current official code, accessed 2026-07-19. URL: https://www.ilga.gov/Legislation/ILCS/Fulltext?DocName=075500270K85
Title: 760 ILCS 3/505, Creditor's claim against settlor. Publisher: Illinois General Assembly (Illinois Compiled Statutes). Publication Date: Current official code, accessed 2026-07-19. URL: https://www.ilga.gov/Legislation/ILCS/Fulltext?DocName=076000030K505
Title: 735 ILCS 5/12-902, Exemption after death or desertion. Publisher: Illinois General Assembly (Illinois Compiled Statutes). Publication Date: Current official code, accessed 2026-07-19. URL: https://www.ilga.gov/Legislation/ILCS/Fulltext?DocName=073500050K12-902

It is not legal advice.