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One husband recently asked me: "Can I legally disinherit my wife* in Illinois so she receives nothing if I die?" The short answer is yes, you can do it with enough advance planning. First lets look at different types of assets.
Couples that own a home frequently have the title in the joint names of both the husband and wife with a specific "right of survivorship." So if you die first, your wife receives the whole home even if you have a will leaving all your assets to someone else. You need to look at the deed conveying the home to you and see if there is a right of survivorship. Examples would be joint tenancy with right of survivorship or tenancy by the entirety with right of survivorship.
Joint Accounts or Payable on Death Accounts
Couples also frequently have all sorts of accounts that may have a right of survivorship. For example, bank accounts, savings and loan, or stock brokerage accounts all may have joint ownership with a right of survivorship, payable on death accounts, or transfer on death (TOD) accounts payable to some person other than your wife.
Transfer-On Death Registration for Motor Vehicles
You can name someone other than your wife through the Illinois Secretary of State to be beneficiary of your car or other motor vehicle. The restrictions are that the vehicle can be in the name of only one person and only one person can be beneficiary
Assets in a Living Trust
A trust created by you during your lifetime is called a living trust. A living trust is created by you through a document that you sign. The trust document may provide that upon your death the assets in that you put into the trust will pass upon your death to a person other than your wife. You can put both real estate, savings accounts, stocks, bonds, securities, and many other types of assets into such a living trust and all would pass upon death to a person other than your wife. You can also make the trust so you can take the assets out while you are alive or simple take back or revoke the whole trust. This is called a "revocable trust." It would be best to contact an experienced lawyer to help you with this.
Individual retirement accounts (IRAs) also allow the owner to designate a person other than his wife as a beneficiary in the event of death. Other retirement accounts such as 401 k, Employer Profit Sharing Plans, Money Purchase Plans, and a whole long list of other retirement accounts may or may not allow you to designate a person other than your wife as beneficiary upon your death. You need to check with the plan to find out.
Probate Court Proceedings including Assets in Your Name
Probate is probably something you have heard about. Probate is a legal case that occurs if you die with assets in your name only if your own assets at your death are more than $50,000 in value. Probate cases have gotten a bad name because they are frequently costly requiring a lawyer and the posting of a bond. But if you have assets at your death in your name you may sign a Last Will and Testament also simply called your "will" and leave everything to someone other than your wife, but then you can only partly disinherit your wife.
But under Illinois law, your spouse has the absolute right over your will when you die. The Illinois Probate Act (755 ILCS 5/2-8) allows your wife the right to partly revoke the will you made. She uses her right of "renunciation" over your will. This means that if she applies to the Court, she an absolute right to receive 1/3 of your property when you die if you have children, or 1/2 or your property if you do not even if your will says it all goes to someone else. She is also eligible for a widows award based upon your income at death.
However, this applies only to assets held in your sole name at your death and not as listed in the examples above.
If you are in need of an family law attorney, please contact the Law Office of Martoccio & Martoccio at 630-920-8855 or visit our office located at 15 North Lincoln Street, in Hinsdale, Illinois.
*The above article applies equally to a wife who wants to disinherit her husband. Read on for the next installment of what you can do as a wife to stop your husband from being able to disinherit you.