In Illinois, survivorship marital property is a concept used to refer to property when one party in a marriage dies. All marital property does not automatically go to the surviving spouse. If an asset was co-owned, the remaining owner takes the rights to the property.
Sadly, all marriages come to a close. Some end in divorce, but in other cases a marriage ends because one spouse passes away. When this tragic event occurs, there are laws in place that outline how the deceased spouse’s property is divided.
Marital Property When One Spouse Dies
Illinois is not a marital property state, it is an equitable property state. This means in the event of a divorce, property is divided based on what is fair when looking at each party’s contribution to the marriage.
However, marital property versus equitable property is not relevant when a spouse dies. These two things are in the section of Illinois’s statutes that cover divorce and separation. However, probate law is the section that covers what happens to someone’s estate when they die.[1]
Supporting the Remaining Spouse
Under the Illinois Probate Act (Article XV) the court will give the surviving spouse at least enough to support them and any children they had together for nine months.[2] This law is only relevant if there was no will or other previously settled agreements. This can also come up if those prior agreements didn’t plan to give the other spouse enough money.
On top of the nine-month rule, the court also sets out the dollar amount minimum to be at least $20,000 given to the surviving spouse. There is also a $10,000 minimum per child that the couple had together.
Priority of Fund Distribution
Granting funds to the surviving spouse and any of their children are second-class claims. This means that they will not be given priority over first-class claims. First class claims include things such as funeral expenses and other death-related expenses.
The spouse and child’s claims will take precedence over claims such as estate taxes, creditors, and debts.
Prenuptial Agreements and Surviving Spouse's Rights in Illinois
Prenuptial agreements or postnuptial agreements determine how property from before the marriage will be divided when the marriage ends. These agreements come into effect either in the event of a divorce or when a party passes away.
These agreements are especially important if they include clauses regarding a spouse’s inheritance. A prenuptial agreement even takes precedence over a will and the spousal claim mentioned above.
The Marital Home – Joint Tenancy with Right of Survivorship
When parties co-own a home during their marriage, the surviving party will keep the home. The surviving party can keep the home or sell it depending on their own situation and needs.
If the home was solely owned by the party that died, then the person that they decided would get it in their will or estate will get the home. There are some complications of how this can actually end up, so your best bet will be to discuss your situation with an attorney.
To get an attorney who can help you with a case in probate law, you can contact the Illinois State Bar.
For Immediate help with your family law case or answering any questions please call(312) 757-8082now!
