Illinois Spouse's Rights: Renouncing the Will (the Illinois Elective Share) and the Spouse's Award

By Rozsa Gyene, California estate planning attorney, State Bar of California #208356. Published October 4, 2026. Last reviewed October 4, 2026.

This guide follows the Probate Act of 1975 in the order a surviving spouse meets it: the share when there is no will, the renunciation of a will that gives too little, the spouse's and child's awards paid before the estate is divided, and the ways those rights are waived. Every rule is cited to the section it comes from, read on the Illinois General Assembly's statute site on October 4, 2026. It is general information, not advice about a particular marriage or estate.

When there is no will: 755 ILCS 5/2-1

The intestate real and personal estate of a resident decedent, after all just claims against the estate are fully paid, descends and is distributed as follows: if there is a surviving spouse and also a descendant of the decedent, 1/2 of the entire estate to the surviving spouse and 1/2 to the decedent's descendants per stirpes (2-1(a)); if there is a surviving spouse but no descendant, the entire estate to the surviving spouse (2-1(c)). If there is no spouse but a descendant, the descendants take everything per stirpes (2-1(b)), and if there is neither, the estate goes to the parents, brothers and sisters in equal parts, with a double portion to a surviving parent when the other is dead and the descendants of a deceased brother or sister taking that sibling's share per stirpes (2-1(d)), then outward to grandparents and their descendants under the rules in 2-1(e) to (g). In no case is there any distinction between kindred of the whole and the half blood (2-1). The section distributes the intestate estate after all just claims are paid; it does not mention property that passes outside the estate, such as joint tenancy property, trust property or an account with a named beneficiary.

Renouncing the will: 755 ILCS 5/2-8

If a will is renounced by the testator's surviving spouse, whether or not the will contains any provision for the benefit of the surviving spouse, the surviving spouse is entitled to the following share of the testator's estate after payment of all just claims: 1/3 of the entire estate if the testator leaves a descendant or 1/2 of the entire estate if the testator leaves no descendant (2-8(a)). The right does not depend on how the will was signed: a will executed with the two witnesses 4-3 requires is fully valid and can still be renounced, because the renunciation is the spouse's choice, not a defect in the will.

How and when to file

To renounce a will, the surviving spouse must file in the court in which the will was admitted to probate a written instrument signed by the surviving spouse and declaring the renunciation (2-8(b)). The time of filing is within 7 months after the admission of the will to probate, or within such further time as the court allows if, within those 7 months or before an extended period expires, the spouse files a petition setting forth that litigation is pending that affects the spouse's share in the estate (2-8(b)). The filing is a complete bar to any claim of the surviving spouse under the will (2-8(b)), so the choice is all or nothing: the spouse takes the statutory fraction or the will's gifts, not both.

What renunciation does to the rest of the will

If a will is renounced, any future interest which is to take effect at or after the termination of an estate or other interest given by the will to the surviving spouse takes effect as though the surviving spouse had predeceased the testator, unless the will expressly provides that in case of renunciation the future interest shall not be accelerated (2-8(c)). If the renunciation diminishes or increases the legacies to other persons, the court, upon settlement of the estate, abates from or adds to the legacies so as to apportion the loss or advantage among the legatees in proportion to the amount and value of their legacies (2-8(d)).

What the renunciation statute does and does not reach

Section 2-8 measures the spouse's fraction against the testator's estate after payment of all just claims. It does not mention trusts, joint tenancy property, accounts with a named beneficiary, life insurance or any other property that passes outside the estate, and it contains no list of nonprobate transfers to be added back, as some other states' elective share statutes do. We read the section twice, on October 3 and October 4, 2026, and this page reports only what it says; whether and how an Illinois court would reach assets outside the probate estate on a renunciation is a question for an Illinois attorney. Two related statutes do speak to nonprobate property. Under the Illinois Trust Code, after the settlor's death the property of a trust that was revocable at death is subject to claims of the settlor's creditors, costs of administration, funeral expenses and statutory awards to a surviving spouse and children to the extent the settlor's probate estate is inadequate to satisfy them (760 ILCS 3/505(a)(5)); that reaches the spouse's and child's awards described below, and the statute's words are awards, not the renunciation share. And under the Real Property Transfer on Death Instrument Act, a surviving spouse may renounce a transfer on death instrument and take a one-third interest in the real property if the owner leaves a descendant or a one-half interest if not, by filing a signed renunciation with the recorder where the instrument is recorded within 7 months after the owner's death (755 ILCS 27/66), described in the transfer on death instrument guide.

The spouse's award: 755 ILCS 5/15-1

The surviving spouse of a deceased resident of Illinois whose estate, whether testate or intestate, is administered in Illinois shall be allowed, as the surviving spouse's own property, exempt from the enforcement of a judgment, garnishment or attachment in the possession of the representative, a sum of money that the court deems reasonable for the proper support of the surviving spouse for the period of 9 months after the death of the decedent, in a manner suited to the condition in life of the surviving spouse and to the condition of the estate, and an additional sum the court deems reasonable for the proper support, during that period, of minor children of the decedent who resided with the surviving spouse at the time of the decedent's death (15-1(a)). The award may in no case be less than $20,000, together with an additional sum not less than $10,000 for each such child, and it is paid to the spouse at such time or times, not exceeding 3 installments, as the court directs (15-1(a)). If the spouse dies before the award is paid in full, the unpaid amount goes to the spouse's estate; if the spouse dies or abandons a child before the child's part is paid, it is paid for the child's benefit to a person the court directs (15-1(a)).

The dependent adult child

For each adult child of the decedent who is likely to become a public charge, was financially dependent on the decedent and resided with the surviving spouse at the decedent's death, the spouse is allowed a further sum the court deems reasonable, or that the spouse and the representative or small estate affiant agree on, for the adult child's support for 9 months; it shall be at least $5,000 for each such adult child and otherwise consistent with the support the decedent was providing immediately before death (15-1(a-5)). There is a deadline: within 30 days of receiving written notice of this potential award from the representative or the small estate affiant, the spouse or the adult child, or the adult child's agent or guardian, must give written notice back asserting that the adult child was financially dependent on the decedent, and failure to do so within the 30 days bars the award (15-1(a-5)).

When a will takes the award away

The surviving spouse is entitled to the award unless the will of the decedent expressly provides that the provisions thereof for the surviving spouse are in lieu of the award and the surviving spouse does not renounce the will (15-1(b)). A spouse who renounces such a will therefore gets both the 2-8 fraction and the award. The current figures apply to a decedent who died on or after June 1, 2018, the effective date of Public Act 100-478 (15-1(c) and the section's Source line).

The child's award: 755 ILCS 5/15-2

A minor child of the decedent who did not reside with the surviving spouse at the decedent's death is allowed a reasonable sum for 9 months of support, not less than $10,000, paid for the child's benefit to a person the court directs (15-2(a)). If the decedent leaves no surviving spouse, all children who were minors at the date of death are allowed a reasonable sum for 9 months of support, not less than $10,000 for each of them, together with an additional sum not less than $20,000 divided equally among them or apportioned as the court directs (15-2(b)). An adult child who is likely to become a public charge, was financially dependent on the decedent and did not live with the surviving spouse is allowed at least $5,000, subject to the same 30 day written notice requirement as under 15-1 (15-2(b-5)). These awards are likewise exempt from the enforcement of a judgment, garnishment or attachment in the representative's possession.

How the award is allowed, paid and challenged: 15-3 and 15-4

The representative shall apply to the court to make the award when an award is allowable and is not waived or barred, and when it is allowed, shall mail or deliver a copy of the award to each person in whose favor it is made unless service is waived (15-3(a)). On petition of the surviving spouse, the representative, an heir or legatee, or a creditor of the estate, the court may hear evidence and may increase or diminish the award as justice requires (15-3(b)). The spouse is entitled to receive the award in money or, at the spouse's election, in whole or in part in goods and chattels of the decedent not specifically bequeathed, at their appraised value; the selection must be made in writing within 30 days after the spouse is notified in writing of the allowance of the award and filed in the court (15-4(a)). If there is no surviving spouse, the children have the same right of selection (15-4(b)). The awards stand apart from ordinary debts: the Probate Act's claims bar applies to every claim against the estate except expenses of administration and the surviving spouse's or child's award (18-12(a)), while all other claims are barred 2 years after death whether or not letters are issued (18-12(b)).

Waiving the spouse's rights

Illinois recognizes premarital agreements under the Illinois Uniform Premarital Agreement Act (750 ILCS 10/1). A premarital agreement must be in writing and signed by both parties, and it is enforceable without consideration (10/3). The parties may contract with respect to the rights and obligations of each in any of the property of either or both of them, the disposition of property upon separation, marital dissolution, death or any other event, and the making of a will, trust or other arrangement to carry out the agreement, among other matters not against public policy; the right of a child to support may not be adversely affected (10/4). That is how a couple changes the outcome described on this page before the marriage. After the marriage, a will's express statement that its gifts to the spouse are in lieu of the spouse's award removes the award unless the spouse renounces (15-1(b)), and a spouse may waive the right to renounce a transfer on death instrument by signing a waiver as part of the instrument (755 ILCS 27/66(a)). The Probate Act sections cited here contain no provision for waiving the 2-8 renunciation right itself after marriage.

What a living trust changes

A revocable living trust keeps the home and accounts out of probate, which is where 2-1 and 2-8 operate, but it does not place them beyond the spouse's and children's awards: to the extent the probate estate cannot pay them, the trust property is liable (760 ILCS 3/505(a)(5)), and the trustee is released from that liability only for distributions made 9 months or later after death without notice from the personal representative that the estate is insufficient (3/505(a)(6); see also 3/604(b)). For most married couples the question never arises: a joint trust that provides for the survivor, with the award and the intestate share as the floor, leaves nothing to renounce. The Illinois living trust page describes the joint plan, and the Illinois probate process guide explains the claims period in which the award is paid.

What changed in 2025 and 2026

No public act of the 104th General Assembly (104-0001 through 104-0854 as of October 4, 2026) amends the sections cited here. Sections 2-1, 2-8, 15-1, 15-2, 15-3, 15-4 and 18-12 of the Probate Act carry no public act later than Public Act 100-478 (effective June 1, 2018) in their Source lines; the Premarital Agreement Act sections carry Public Act 86-966; and no act in the 104th General Assembly list is described as amending the spouse's award, the renunciation of a will or the rules of descent. The 2025 and 2026 acts that do touch the Probate Act (small estate affidavits, letters of office notice, guardianship and the will depository) are covered on the other Illinois guides.