Tag: marriage

Is It a Good Idea to Sign a Joint Will with Your Spouse?

When planning your estate, you may wonder if it is a good idea to sign a joint will with your spouse. You love your spouse and want to share everything with him or her – why not make your wills together? Though joint wills once were widely used and popular, the major problems they create should deter you from making one.

What Is a Joint Will?

A joint will is a creature of convenience that many people used before modern technology became available. It saved a lot of time (and handwriting or typewriting) to list a married couple’s wishes in one document instead of two. Both of the spouses would sign the will, and it would dispose of all their property.

What Are the Disadvantages of a Joint Will?

Joint wills have many disadvantages, including:

  • Both spouses must agree to any changes to the will;
  • Both spouses must execute the will if it they modify it; and
  • If the will is worded improperly, the surviving spouse may not benefit from the other spouse’s property.

Importantly, the surviving spouse cannot change the will after the other spouse dies. Once one spouse dies, both spouses are not able to agree to any modifications. This could seriously hinder the surviving spouse from carrying out his or her wishes. For example, the surviving spouse may remarry and want to leave money to his or her new spouse or stepchildren. This would be impossible with a joint will. So would disinheriting someone listed in the joint will.

Alternatives to a Joint Will

Couples today often have separate property. Many people have children from a previous relationship. Others have individual ties to charities or organizations not shared with their spouse. All this means that spouses often have different wishes incompatible with a joint will.

One option instead of a joint will is each spouse forming a trust that benefits the other spouse. You also might consider beneficiary designations on life insurance or retirement accounts leaving the payouts to each other. Of course, each spouse should make a separate will too.

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.

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

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 Marriage

After you get married, you may need to make substantial updates to your estate plan. Marriage changes many parts of people’s lives, including their need to plan for the future in different ways.

How Could Marriage Change Your Estate Plan?

As you celebrate the beginning of a new marriage, you also might think about protecting your spouse in case anything happens to you. If you plan to have children or have new stepchildren due to the marriage, you probably want to protect them too.

Estate plans made before marriage most likely do not include future spouses or children. As a result, your new husband, wife, or partner might not inherit anything from your estate if you passed away unexpectedly. While spouses and children omitted from a will may inherit part of an estate in some cases, there are no guarantees. It provides more peace of mind to revise your will and other estate planning structures.

Will Your New Spouse Inherit Even If You Don’t Change Your Estate Plan?

In Illinois, an “omitted” spouse who married a deceased person after his or her will was signed and who is not included in the will might still inherit. The law may allow the spouse to make a claim against the estate, requiring the estate executor to distribute part of the assets to the spouse and reducing the amount that other heirs will receive. However, if the will explicitly omits the spouse, then the omitted spouse law may not apply. If any language in the will says that a spouse will not receive anything, then the probate court could decide that the deceased person disinherited the spouse on purpose.

Which Parts of Your Estate Plan Do You Need to Update?

You should review your entire estate plan shortly after marriage to see if you need to make any changes. This includes your will, powers of attorney, medical directives, trusts, retirement accounts, life insurance policies, business succession plans, guardianship designations, and any other documents relating to the future. You and your spouse may want to visit an estate planning attorney (either the one who made your original estate plan or someone new). The attorney can advise you on any new legal issues that arise with your marriage, such as potential estate taxes or need for different language in the legal documents.

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

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.

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