Do You Have a Will? You Should Know About the "Spousal Elective Share"

 Posted on November 26, 2025 in Estate Planning

You drafted a will leaving your property to your children from a previous marriage; you gave your current spouse specific assets; you now think your estate plan is complete. But did you know that Illinois law may give your spouse the right to reject your last will and testament and claim a larger portion of your estate instead? This right is called the "spousal elective share", and it can completely override your carefully planned estate distribution.

Understanding how Illinois’ elective share law works helps you create an estate plan that reflects your wishes, while also accounting for your spouse's legal rights. Ignoring these rights can lead to family conflict and court battles after your death. Avoid this by working with our skilled Oak Park, IL estate planning attorney. 

What Is a "Spouse’s Elective Share" in Illinois?

Illinois law, under 755 ILCS 5/2-8, allows a surviving spouse to renounce the will, and instead take the maximum share of an estate to which the law entitles them. Illinois treats marriage as an economic partnership, and the elective share provision protects people from being completely disinherited when their spouse dies. 

The amount of the "spousal elective share" depends on whether you have descendants. If you have children or other descendants, your spouse can claim one-third of your net estate after debts and expenses. If you have no descendants, your spouse can claim one-half of your net estate.

When Can Someone Claim an Elective Share of Their Spouse’s Will?

Someone who wants to claim their elective share has seven months from the date a will is admitted to probate to file a petition renouncing the original will. This deadline is strict. 

The seven-month period starts when the court formally admits a will to probate, not from the date of death. If probate is delayed for any reason, the clock for claiming the elective share does not start until the will is actually admitted.

A spouse must file a written petition with the probate court renouncing the will and claiming their elective share. Simply telling family members they want the elective share is not enough. The petition must be properly filed with the court handling the estate.

Can You Prevent Your Spouse From Claiming the Elective Share?

Through proper planning and agreements, you can prevent your spouse from claiming their elective share of your estate, but this needs to be done carefully, and with your spouse’s knowledge and consent. The most common method is producing either a "Prenuptial Agreement" or a "Postnuptial Agreement", in which your spouse waives their right to claim the elective share. For either a "Prenuptial Agreement" or "Postnuptial Agreement" to be valid, both parties must provide full financial disclosure, the agreement must be in writing and signed by both parties, and neither party can be under duress or coercion when signing.

Another way to limit a spouse’s ability to claim an elective share is by using a trust. The elective share applies only to assets that pass through probate, so placing property in a "Revocable Living Trust" keeps those assets out of the elective-share calculation. 

However, courts can pull trust assets back into the estate if the trust was created "in fraud of marital rights," meaning that the trust was clearly designed to deprive the spouse of property the law guarantees them. The safest ways to plan around the elective share are using either a"Prenuptial Agreement" or a "Postnuptial Agreement", giving the spouse a "QTIP Trust" that satisfies their elective share rights, as well as structuring non-probate transfers, such as beneficiary designations and life insurance.

Call a Hillside, IL Estate Planning Attorney Today

The elective share is a powerful right that can override your will and disrupt your estate plan. Understanding how it works and planning around it ensures that your estate is distributed according to your wishes, while at the same time respecting your spouse's legal rights.

Contact the Law Office of Vincent C. Machroli, P.C. at 708-449-7404 to discuss your estate planning needs. Our Oak Park wills and trusts attorney offers no-charge legal consultations.