Illinois Has an Elective Share. Texas Does Not.

One of the sharpest differences between Illinois and Texas estate law is what happens when a will leaves a surviving spouse less than the spouse expected. The two states answer that question in almost opposite ways, and families who assume the rule they grew up with often get an unpleasant surprise.

The Illinois rule

Under 755 ILCS 5/2-8, an Illinois surviving spouse may renounce the will and instead take one third of the entire estate if the decedent left a descendant, or one half if the decedent left no descendant. The renunciation must be filed within seven months after the will is admitted to probate, or within such further time as the court allows where litigation affecting the share is pending.

Illinois also provides a spouse’s award under 755 ILCS 5/15-1, a support allowance of not less than $20,000, plus not less than $10,000 for each dependent child living with the surviving spouse. This is separate from the renunciation and is paid from the estate ahead of general distributions.

There is a large limit on all of this that clients rarely hear. Illinois has no augmented estate.

The renunciation reaches the probate estate, so assets that pass outside probate, including a funded revocable trust, payable on death designations, and survivorship accounts, can substantially reduce what the renouncing spouse actually receives. Illinois has closed that gap in one place, allowing a surviving spouse to renounce a transfer on death instrument within seven months after death, and the existence of that narrow fix tells you what the general rule is everywhere else.

The Texas rule

Texas has no elective share. A Texas will can, in principle, leave a surviving spouse nothing from the decedent’s separate property and from the decedent’s half of the community property. There is no statutory right to renounce and claim a fixed fraction.

What Texas gives a surviving spouse instead is different in kind. Community property law already vests one half of the community estate in the surviving spouse, so a will can only dispose of the decedent’s half.

The homestead right allows the surviving spouse to occupy the homestead for life, and the homestead may not be partitioned among the heirs while the surviving spouse elects to use it. There are exempt property set asides and a family allowance. Those protections are meaningful, but they are protections of possession and support rather than a share of the estate.

Why this matters most in second marriages

The mismatch is worst in blended families. An Illinois couple who moves to Texas may believe the surviving spouse is protected by a right that no longer exists. A Texas couple who moves to Illinois may sign a will that would have been perfectly effective in Texas and is now subject to renunciation seven months after probate.

The planning response is the same in both directions and it is not complicated: say what you mean in writing, in advance, with both spouses represented. A marital property agreement, a premarital or postmarital agreement, or a properly funded trust can produce a result both spouses actually chose, rather than one the statute chose for them after a death.

If you are in a second marriage with property in Texas or Illinois, the default rules are unlikely to match your intentions. Call or text 512.761.8479.