When a spouse dies without a will in Illinois, the state takes over—and the results are unlikely to match what was expected or intended. Dying without a will can introduce financial complications and add stress to an already difficult time. Having a will can help your family avoid this bureaucratic turmoil and additional uncertainty.
An experienced estate planning attorney can guide you through the process of preparing your assets before your death. Having a legally executed will is the most basic step. Without a will, the state’s probate laws determine how the assets of the deceased are inherited.
Common Misconceptions About Inheritances
People frequently believe that, when a married person dies, their spouse automatically inherits all of their assets. That’s not true in Illinois. If a person dies without a will in Illinois, state probate court determines how their assets are divided and who receives them. The most common outcome of this situation (called “dying intestate”) is that the living spouse receives half of the estate and descendants share the other half. This can automatically omit close family members (like stepchildren who were not adopted).
Living descendants are defined as children, grandchildren, and great-grandchildren by the state of Illinois. The only way that the surviving spouse inherits everything is if the deceased spouse did not have living descendants.
How Illinois Probate Works
When a person dies without a will, they are considered “intestate,” prompting the state probate process to distribute their assets according to state law. The first step is appointing an administrator to the estate (who accounts for and has assets appraised, pays bills, and distributes assets).
If the total value of the estate is below $150,000 and does not include real estate, the heirs may apply for an expedited probate process. This allows the inheritance to be distributed more quickly and without the legal procedures that probate often requires.
Surviving Spouses Get Protection from Illinois Laws
Surviving spouses get financial protection through Illinois law, such as:
- Spousal Award. Probate court determines a reasonable amount to award for regular support through a nine-month period. It is set at $20,000 with an additional $10,000 per dependent child in the household.The funds are provided regardless of separation or the spouses living apart.
- Homestead Exemption. Surviving spouses may claim a homestead exemption for the primary residence. In January 2026 the amount was increased to $50,000 per individual and $100,000 per couple for a jointly-owned home. This protects a portion of the equity in a home from creditor claims during the estate settlement process.
Inheritances of Minor Children
In intestacy cases, children under age 18 are provided a share of any inheritance by probate court. Due to their age, the court appoints a guardian to manage the funds until the child is over 18. This can be financially challenging for the surviving spouse, who cannot access the funds even if they were part of a shared savings account used to support the family. Minor children cannot gift the funds back to the parent for expenses due to their age.
Assets That Bypass Probate
If the deceased had a living trust, the assets it contains are passed directly to beneficiaries without probate intervention. Also, retirement accounts, pay-on-death bank accounts, and life insurance policies are paid directly to the beneficiaries listed, regardless of a will.
Family Members Who Are Not Protected
Probate courts do not recognize foster children or stepchildren who are not legally adopted, along with unmarried or domestic partners. Without a will, they will not inherit anything and will not have a legal claim to any assets. A will allows the deceased to name anyone or any organization as a beneficiary of their estate.
Take Control of Your Legacy With a Will
The outcome of probate court deciding how your heirs should receive your assets may not resemble what you planned. Unfortunately, unless that plan is a legally executed will, you’re giving control to the state court to decide what’s right for your family. An experienced estate planning attorney from Legacy & Life Law can provide the guidance you need to protect your assets and your family’s inheritance rights. Call for a consultation today.