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How Illinois Courts Handle Death During Divorce

Because divorces can take months or even years to finalize, some people end up facing the reality of having their spouse die before the divorce is final, and this creates complications that must be addressed. If there are unresolved issues in the divorce, death can make the process even longer. Here is a closer look at how the courts in Illinois handle this issue.

Spousal Death Leads to Case Dismissal

If a divorce is underway and a spouse dies, the courts will dismiss the case at its next court date. If there are no underlying or unresolved issues, no other actions need to be taken. Because there are not two living parties, there cannot be a divorce.

Handling Unresolved Issues when a Spouse Dies

Unfortunately, divorces often bring issues in dividing the marital estate that the courts or a family law attorney must address. If these are not resolved when a spouse dies, it complicates the case.

In the state of Illinois, these issues become part of the probate process, rather than the divorce process. The probate law, the surviving spouse remains the spouse of the deceased, regardless of the intention to divorce. Unless the divorce was completed, the surviving spouse remains the full spouse legally speaking during probate.

What If the Spouse Has No Will?

If the spouse dies without a will, then the state of Illinois calls this “dying intestate.” Current law states that someone who is married and dies without other heirs, like a child, the entire estate goes to the surviving spouse. Even if the couple was intending to divorce, the estate passes to the surviving spouse.

If the spouse dies and has children, then half of the property goes to the living spouse and the other half is divided among the children.

What if the Spouse Has a Will?

If the deceased individual does have a will, then the courts will divide the estate according to the will’s instructions. The surviving spouse has the option to renounce the will, which indicates a disagreement with the will’s contents. In this case, the probate courts will pay off all bills, then pay the surviving spouse 1/3 of the remainder if there are children or half if there are not, dividing the rest as indicated in the will.

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He helps clients resolve issues relating to family law, including divorce, parenting time and parental responsibilities, paternity, and child support. As a skilled real estate attorney as well, Scott also provides advice and legal representation to clients who are purchasing or selling residential or commercial property in Illinois. 

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