Did you know that all adult residents of Illinois have a will? So long as you are a resident of and maintain assets in Illinois, should you die without a will, the Illinois legislature has already determined who receives your real and personal estate. Depending on the relationship and legal status of your family, however, without a formal will directing how your assets are distributed, those you care most about may not be the ones receiving your assets upon your death. Because of the unique circumstances and relationships within the LGBT community, it may be particularly important to establish an estate plan to ensure financial security for those that depend on you.
In Illinois, the intestacy statute ( 755 ILCS 5/2-1 ) is a law that directs who receives what portion of a person's assets when that person dies without a will. The most frequently relevant sections of the intestacy law establish that when someone dies without a will, and they had a spouse and descendants ( biological or legally adopted children ), one-half of the deceased's estate goes to the surviving spouse while the other half is split evenly among the surviving descendant( s ). If the same person dies without a surviving spouse but only descendants, their entire estate is split evenly among the surviving descendant( s ).
Similarly, if that person died with a surviving spouse but no descendants, their entire estate would pass to their surviving spouse. Importantly, when an Illinois resident dies without a surviving spouse or descendants, their entire estate passes to their surviving siblings and parents, and a double share if only one parent.
While the distribution system established by the intestacy law may sound reasonable, a few examples may highlight how your relationships and their legal statuses can determine who is entitled to your assets if you died without a will.
Consider the hypothetical couple John and Brett, who long ago decided not to marry. John and Brett are in the process of raising two daughters, Sarah and Anne. John legally adopted Sarah and Anne and raises both while Brett works full time to support their family. Brett has two sisters and two brothers. Neither John nor Brett have a will. One day, when Brett unexpectedly passes away, John consults with an attorney to determine how to go about receiving Brett's assets. Unfortunately for John, because he and Brett never married and are not parties to a civil union, John is not Brett's "surviving spouse" for purposes of the Illinois intestacy law. Additionally, because Brett never adopted Sarah or Anne, neither are Brett's surviving descendants. Reluctantly, the attorney explains that because Brett died without will, no surviving spouse, and no descendants, the entirety of Brett's estate passes to Brett's surviving siblings and parents instead of John, Sarah, or Anne.
While marriage and adoption may both be viable solutions to address the above issues, both come with significant responsibilities and obligations. Instead, an experienced estate planning attorney can ensure that those you care most about will be provided for in the event of an unexpected death. Estate planning is a very personal process and an important part of planning for you as well as your family and loved ones. If you are interested in learning more about how to ensure financial security for you and your family, please feel free to contact any of Clark Hill's experienced estate planning attorneys.
Christopher S. Hopkins is an associate in the litigation practice group at Clark Hill PLC. Christopher helps individuals, families and closely held business owners plan for and resolve difficult transitions of wealth, businesses, and real property.
