Tag: divorce

Does Divorce Invalidate Gifts to Your Ex-Spouse in Your Will?

Posted May 22, 2022 by Law Office of Andrew Szocka

When you get divorced, you may wonder if the divorce decree invalidates gifts to your ex-spouse made in your will. In Illinois, a divorce nullifies any language in your will that makes your ex-spouse an heir.

Effect of Divorce on Gifts

The effect of divorce on gifts varies somewhat from state to state. The type of gift matters too. In Illinois, any gifts made to an ex-spouse in a will signed before the divorce cannot be enforced. The ex-spouse will not inherit no matter what.

It does not matter how specific the will’s language is – all gifts to ex-spouses are not valid. It also does not matter when the will was made. In one legal case, the testator signed his will long before his marriage when he decided to leave his estate to his friend. Later, he married the friend, and then they got divorced. The court found that his gift to his ex-wife was not valid, regardless of the fact that he made the will before the marriage and before the divorce.

However, the rule is different for life insurance policies in Illinois. There is no Illinois law that removes your ex-spouse as beneficiary of your life insurance policies. The reasoning is that if you wanted to change the beneficiary, you could have done so. As a result, you must review your life insurance after divorce. If your ex-spouse is the beneficiary and you do not want him or her to receive the proceeds, then update your beneficiary designation.

Updating Your Will After Divorce

Because of the effect of divorce on testamentary gifts in Illinois, you must update your will after a divorce. If you do not update the will, then the probate court will simply disregard a gift to your ex-spouse and distribute the estate to your other heirs. This may have a result that you did not intend. Updating your will is the best way to have peace of mind that your wishes will be carried out.

If you still want to leave property to your ex-spouse (perhaps you are on friendly terms, or he or she needs support), then you can. First, make sure the will is dated after the date of the final divorce decree. Also, you should consult a wills and trusts lawyer to ensure that the will includes appropriate language about the gift to your ex-spouse.

Want to start planning your estate? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

Updating Your Estate Plan After Divorce

Posted May 20, 2022 by Law Office of Andrew Szocka

After a divorce, your estate plan is probably not the first thing on your mind. But making changes to the plan could be extremely important to provide peace of mind that your wishes for the future will be carried out.

How Does a Divorce Impact Your Estate Plan?

During marriage, most people tend to leave a portion of their assets to their spouse and any children from the marriage. After a divorce, those wishes may change substantially. Some choose to disinherit their ex-spouses, while others want to reduce the inheritance amount. If you are paying child support, you may anticipate not having much money to spare in the future.

If you do not make any changes to your plan, then your ex-spouse might receive a portion of your assets in a way that you did not intend. Even when laws say that a divorce voids gifts to an ex-spouse made in a will signed before the divorce, other estate planning devices still could apply. For example, you might have designated your ex-spouse as the beneficiary of a trust or a life insurance policy. The only way to disinherit him or her is by changing the beneficiary designation.

Making Changes to Your Estate Plan

Once you decide that you need to make changes to your estate plan due to divorce, seek out legal advice. An estate planning lawyer can review your entire plan and determine which parts you need to modify. Often, you must sign a new will and sign quite a few other papers to make the adjustments. Be sure to mention any powers of attorney, retirement accounts, or other structures you have used to the lawyer. You might not realize that they need changes too.

As you discuss the new estate plan, you will need to consider how to redistribute money that you might have given to your spouse in the past. Perhaps you would like to give to charity or save for your children’s college funds. Estate planning devices such as trusts, life insurance, or 529 plans can help you accomplish your new goals.

Finally, remember that you should continue to update your estate plan after many major life changes. You may remarry, move to a different state or country, have children, lose a family member, or inherit money. All of these events are good reasons to review your plan again.

Want to update your estate plan? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

Illinois Marital Property Laws: The Basics

Posted February 25, 2022 by Law Office of Andrew Szocka

If you have ever been divorced or considered divorce in Illinois, you may have heard of the term marital property. The Illinois marital property laws dictate how assets are divided up in a divorce, independent of how they would be divided upon death of one of the spouses. Spouses can alter division and distribution of assets through a prenuptial or postnuptial agreement or in their wills.

What Is Marital Property?

In Illinois, any property that is acquired before the marriage, by gift, or by inheritance is non-marital property. 750 ILCS 5/503(a). In addition, any income received from non-marital property or increase in value on the property is considered non-marital property. The non-marital property belongs to the spouse who originally acquired it.

Any other property not listed above – usually property acquired during the marriage by one or both spouses – is marital property under the law. During a divorce, all marital property will be distributed equitably between the two spouses. But non-marital property cannot be divided by the court or assigned to the other spouse. 750 ILCS 5/503(d).

What Happens to Marital Property When One Spouse Dies?

Illinois is not a community property state, so the marital property laws do not apply when a spouse dies (only for divorce). Each spouse is considered to own the assets that are titled in his or her name. In other words, if only one spouse’s name is on a car title, then the car is part of only that spouse’s assets and will be distributed as part of his or her estate after death. When the spouses jointly own property, the surviving spouse may automatically receive full ownership of the property outside of the probate process.

Each spouse can make a will that leaves a portion of his or her assets to a spouse, but also he or she could disinherit the spouse altogether. If there is no will, the surviving spouse will receive a share of the deceased spouse’s assets by law.

In addition, spouses can sign a prenuptial or postnuptial agreement that affects distribution of assets – both upon divorce and upon death of one spouse. See 750 ILCS 5/503. For example, such an agreement might waive marital property rights, preventing distribution of property acquired during marriage between the spouses. The agreement also might waive the spouses’ statutory shares of the estates if either dies without a will. Spouses interested in signing this kind of agreement should be sure to integrate it with their existing estate plans or incorporate it into a new estate plan upon marriage.

Want to start planning your estate? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.