Spousal Elective Share Requirements in Illinois

At a glance

Requirements one by one

Governing system, spouse, and share

Illinois uses a renunciation-of-will system. Section 2-8 applies when a testator dies with a surviving spouse, whether or not the will gives that spouse anything. The statute directs the surviving spouse to sign and file the instrument; it does not state a route for a guardian, agent, or personal representative to elect.

After payment of “all just claims,” the spouse receives one-third of the entire estate if the testator leaves a descendant and one-half if no descendant survives. Section 2-8 has no marriage-duration schedule or fixed-dollar minimum.

Estate base, deductions, and satisfaction

The statutory wording is the testator's “entire estate.” Section 2-8 does not define a separate augmented estate or enumerate revocable trusts, beneficiary designations, survivorship property, or other nonprobate transfers as components of that base. It subtracts all just claims but gives no separate valuation date or valuation formula.

If renunciation decreases or increases other legacies, subsection (d) tells the court at settlement to apportion that loss or advantage among the legatees in proportion to the amount and value of their legacies. The section does not create a contribution ladder for nonprobate recipients.

Deadline, extension, and filing

The ordinary deadline is seven months after the will is admitted to probate. An extension is not a general good-cause extension: within the seven months, or before an existing extended period expires, the spouse must petition and state that pending litigation affects the spouse's estate share. Section 2-8 states no withdrawal procedure.

The election document is a written instrument signed by the surviving spouse and declaring the renunciation. It is filed in the same court that admitted the will. The section does not require service, proof of service, verification, acknowledgment, notarization, attachments, or a hearing before the filing takes effect.

Premarital agreements

Section 2-8 does not prescribe a waiver instrument. The Illinois Uniform Premarital Agreement Act separately permits prospective spouses to contract about property disposition at death. Under 750 ILCS 10/3, that agreement must be written and signed by both parties and needs no consideration. After marriage, § 6 requires any amendment or revocation of that premarital agreement to be in a signed writing.

Section 7 supplies the enforceability safeguards. The opposing party may prove involuntary execution or prove that the agreement was unconscionable when signed together with the statute's disclosure, written-waiver, and knowledge conditions.

Effect of renunciation

Filing the instrument is a “complete bar” to every claim by the spouse under the will. A future interest scheduled to begin after an interest given to the spouse generally accelerates as if the spouse had died before the testator, unless the will expressly says renunciation will not accelerate it.

What trips people up

• The clock starts at admission of the will, not at death. Use the probate- admission date to calculate the seven-month period.
• The extension ground is narrow. A timely petition must identify pending litigation that affects the spouse's share; § 2-8 does not state a general extension for excusable delay.
• The filing changes the will's operation. It bars the spouse's will claims, can accelerate future interests, and can require proportional adjustment of other legacies.

Common questions

Does the fraction depend on how long the couple was married? No. Section 2-8 uses only whether the testator leaves a descendant: one-third if so and one-half if not.

Must the renunciation be notarized? Section 2-8 requires a written instrument signed by the spouse, but it states no acknowledgment or notarization requirement.

Can the court extend the filing time because the estate is difficult to value? The statutory extension route is tied to a timely petition stating that pending litigation affects the spouse's share. Section 2-8 does not state a broader valuation-based extension.

Statutes and sources

• 755 ILCS 5/2-8 — share, claims deduction, signed filing, deadline, litigation-based extension, bar to will claims, acceleration, and adjustment of legacies. Official Illinois General Assembly text (accessed 2026-08-02).
• 750 ILCS 10/3 — premarital-agreement writing, signatures, and no- consideration rule. Official Illinois General Assembly text (accessed 2026-08-02).
• 750 ILCS 10/4(a)(3) — agreement terms concerning property disposition at death. Official Illinois General Assembly text (accessed 2026-08-02).
• 750 ILCS 10/6 — signed writing for postmarriage amendment or revocation of a premarital agreement. Official Illinois General Assembly text (accessed 2026-08-02).
• 750 ILCS 10/7(a) — voluntary execution and the unconscionability-plus- disclosure enforceability test. Official Illinois General Assembly text (accessed 2026-08-02).