Can a Spouse Contest a Will if Legally Separated in Illinois?

by Andrine Redsteer
If there are vaild grounds, a legally separated surviving spouse may contest a will in Illinois.

If there are vaild grounds, a legally separated surviving spouse may contest a will in Illinois.

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According to Illinois law, an "interested" person may contest a will if there are valid grounds upon which to do so. For an individual to be considered interested, she must rightfully stand to gain something from the will – this gives her "standing." Although divorced spouses do not have standing, Illinois views the status of legally separated spouses differently.

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Legally Separated Vs. Divorced

Legal separation differs from informal separation. Informal separation typically involves a married couple simply living apart, while legal separation must be obtained through a formal court proceeding and granted by a judge. Some couples choose to become legally separated, as opposed to divorced, for religious or personal reasons; legal separation may also be the closest thing to divorce a couple may obtain if there are residency requirements to be fulfilled before a divorce may be granted. Whatever the reason, legal separation and divorce are similar in that a couple may live apart, seek court approval of child custody arrangements and even enter into property settlements. However, in Illinois, as in many other states, when a married couple obtains a legal separation, the marriage still has legal effect. Thus, a legally separated surviving spouse may have standing to contest her deceased spouse's will and inherit from his estate.

Illinois Grounds for Will Contests

In Illinois, a person with standing may contest a will upon a number of grounds. For example, if a will creator, or "testator," is not mentally capable of understanding the effect of making a will, a legally separated spouse may challenge the will. Furthermore, if there's evidence of undue influence – meaning someone other than the testator exerted influence during the making of the will such that the will does not reflect the testator's true intentions – a legally separated spouse may challenge the will.

Will Contest Procedure

Illinois requires an interested person, such as a legally separated spouse, to file a contest petition within six months from the date the will was admitted to probate court. A legally separated spouse must file the contest petition in the same probate court where the will was admitted. After the contest petition is filed, copies of the petition must be delivered to anyone who may be entitled to notice of the petition – this may include the executor, attorneys and beneficiaries named in the will. If proper notice of the contest petition is not given to entitled parties, the six-month deadline will not be extended.

Results of Successful Contest

As a legally separated surviving spouse contesting a deceased spouse's will, a successful contest may have varying results. The probate court may invalidate the entire will if it is convinced of a lack of testamentary capacity, undue influence or other grounds. This means the inheritance share of the surviving spouse will be divided according to Illinois' laws of intestate succession. For example, if the deceased spouse left one descendent, the surviving spouse is generally entitled to one-half of the estate and the other half passes to the deceased spouse's descendent. If, on the other hand, the deceased spouse left no surviving children or lineal descendents of any kind, the surviving spouse is generally entitled the deceased spouse's entire estate.