Does My Death Stop My Husband from Inheriting My Assets During a Divorce?

If I make a Last Will and Testament leaving everything to my children, can he still inherit from me while the divorce is proceeding? This seems simple, doesn't it? Well, it isn't.

Property in Your Name Alone

A filed divorce case does not automatically stop inheritance by your spouse. If you have real estate or other property in your sole name and die during your divorce case without a Last Will and Testament that property passes one half to your children and one half to your spouse, despite the divorce. In fact, without a will, if you have no children, your spouse gets it all.

So you might think: I will just make a Last Will and Testament and leave everything to my children, so while I am divorcing my property is protected. Well, you can do that but your spouse can renounce (revoke) your will and still receive one third of your property if you have children or one half your property if you have no children. Your spouse also receives a widow or widowers award based upon your yearly income.

Property Owned as Joint Tenancy Real Estate, Joint Tenancy Accounts and Payable on Death Accounts

If your own a home that is titled in your name with your spouse in joint tenancy or tenancy by the entirety with right of survivorship, your husband or wife will receive the entire home upon your death despite the filed divorce case if you die during the case.

If you own a joint bank account or accounts with a right of survivorship your husband or wife will receive the entire account upon your death despite the filed divorce case if you die during the case. This includes bank accounts, savings and loan accounts, credit union accounts, stock or investment accounts or payable on death accounts where your spouse is named as beneficiary if you die first.

So you need to read and understand exactly what assets you and your spouse own. An itemized list of assets and property undated from time to time would be best kept by you. This is equally important: you need to know what form of ownership these assets and property are held in.

Please consult your attorney or tax professional for specific information on ownership rights and rights to inherit in Illinois since this is not a simple subject. Call the Law Office of Martoccio & Martoccio at 630-920-8855 for a free consultation of your Hinsdale divorce asset case.

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