Spousal Elective Share Requirements in Illinois

Short answer Illinois lets a testator's surviving spouse renounce the will and take one-third of the entire estate if the testator leaves a descendant, or one-half if the testator leaves no descendant, after payment of all just claims. The spouse must file a signed written renunciation in the court that admitted the will within seven months after admission, unless the court allows more time after a timely petition based on pending litigation affecting the spouse's share.
State
Illinois
Statute checked
August 2, 2026
Sources
5 statutes

At a glance

Governing law and system755 ILCS 5/2-8; will-renunciation system, not a statutory augmented-estate formula
Eligible spouse and who may electTestator's surviving spouse; § 2-8 states that the spouse signs and files and supplies no representative-election route
Share amount and marriage length1/3 of entire estate if a descendant survives; 1/2 if none; no marriage-length scale or dollar floor (§ 2-8(a))
Estate base and nonprobate transfersTestator's 'entire estate'; § 2-8 does not enumerate an augmented estate or listed nonprobate transfers
Deductions, exclusions, and valuationShare applies after payment of all just claims; § 2-8 supplies no separate statutory valuation date or formula
Deadline, extensions, and withdrawalWithin 7 months after will admitted; more time only after timely petition alleging pending litigation affecting spouse's share; no withdrawal rule (§ 2-8(b))
Filing, service, and court procedureSigned written instrument declaring renunciation, filed in court where will was admitted; § 2-8 requires no service, verification, acknowledgment, or notarization
Waiver and agreement requirements§ 2-8 states no waiver form; premarital death-disposition agreement must be written and signed by both, with UPAA voluntariness/unconscionability-disclosure safeguards (750 ILCS 10/3–4, 7)
Payment sources and recipient liabilityIf renunciation changes other legacies, court proportionally abates or adds to them on estate settlement; no statutory nonprobate-recipient contribution system (§ 2-8(d))
Effect of election and other spousal rightsFiling completely bars claims under will; future interests accelerate as if spouse predeceased unless will says otherwise (§ 2-8(b)–(c))

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

Source links

Every statute quoted above, linked, with the date we checked it.

755 ILCS 5/2-8 · accessed 2026-08-02
750 ILCS 10/3 · accessed 2026-08-02
750 ILCS 10/4(a)(3) · accessed 2026-08-02
750 ILCS 10/6 · accessed 2026-08-02
750 ILCS 10/7(a) · accessed 2026-08-02
This page is general legal information about a surviving spouse's state-law elective share or comparable statutory rights at death, not legal, tax, probate, family-law, or financial advice about a particular estate. Eligibility, asset classification, domicile, marriage duration, nonprobate transfers, debts, valuation, prior agreements, notice, and filing dates can change both the amount and whether an election is available at all. Election deadlines can be short and missing one may permanently forfeit the right; making an election may also alter gifts under a will and contribution rights against other recipients. Verified against the cited official sources on the date shown; obtain prompt advice from a licensed probate attorney before filing, waiving, extending, withdrawing, or relying on an elective-share claim.

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