Detailed Answer

This article explains how Illinois law typically treats an unresolved divorce when a spouse dies. It describes who counts as the surviving spouse for probate purposes, what kinds of rights that spouse may have, and practical steps an executor or an interested person should take. This is educational only and not legal advice.

Key legal rule under Illinois law

In Illinois, a spouse remains a legal spouse until a court enters a final judgment of dissolution (divorce) or annulment. If the decedent died before the divorce was finalized, the person still legally married to them is generally treated as the surviving spouse for probate and intestacy purposes.

That means the estranged spouse can usually assert the same basic claims as any surviving spouse: intestate share (if there is no valid will or the will does not provide for them), statutory allowances such as the family allowance and homestead rights, and certain exempt property. The Illinois Probate Act governs these matters; see the Probate Act of 1975 for statutory provisions and procedures: 755 ILCS 5 — Probate Act of 1975 (Illinois).

How this plays out in common situations

1) No will (intestate)

If the deceased did not leave a valid will, intestacy rules apply and the surviving (still-married) spouse is entitled to take as provided by the Probate Act. Because the divorce was not finalized, the estranged spouse generally inherits as the surviving spouse.

2) There is a will that disinherits or omits the spouse

If a will attempts to disinherit or leave nothing to the spouse but the divorce was not final at death, the spouse is still the surviving spouse for probate law purposes. Illinois recognizes protections for spouses (for example, homestead, family allowance, and statutory allowances) and, in many cases, a surviving spouse may be able to challenge the will or claim statutory entitlements regardless of what the will says. The Probate Act contains rules about revocation or modification of testamentary dispositions upon divorce; see the Probate Act for specifics: 755 ILCS 5.

3) There was a pending divorce action or separation agreement

A pending divorce case does not end the marital status. Until the court signs a final judgment, the parties remain married. A written separation agreement may be a binding contract between the spouses, and in some cases it can affect property rights even after death, but the agreement does not automatically substitute for a final divorce judgment under probate law. Whether a separation agreement modifies what the surviving spouse can claim depends on the agreement’s wording and whether a court would enforce it as a contract. Executors and courts will look at the documents as part of probate.

4) The deceased and the spouse had children (by each other or by other partners)

Intestacy shares depend on whether the decedent has descendants and whether those descendants are also descendants of the surviving spouse. The fact that the parties were estranged does not change intestate calculations if the divorce was not final.

Statutory protections commonly available to a surviving spouse

Family allowance: A short-term allowance to support the surviving spouse during probate.
Homestead allowance/exempt homestead: Rights in a homestead may protect the surviving spouse from being turned out of the home immediately.
Exempt personal property: Certain household items and a set amount of cash or personal property may be exempt from creditors and pass to the surviving spouse.
Intestate share: If there is no valid will, the surviving spouse’s share is determined under the Probate Act.

All of the above are statutory in Illinois and administered through probate. For the governing provisions and detailed rules, consult the Illinois Probate Act: 755 ILCS 5 — Probate Act of 1975.

Practical examples (hypothetical)

Example A: John and Mary have lived apart for years. John filed for divorce but died before the judge signed a final decree. John left a will that leaves everything to his partner, Alice. Under Illinois law, Mary is still John’s legal spouse at death. Mary may claim statutory allowances and may receive an intestate share if the will is susceptible to challenge under relevant statutes and probate procedures.

Example B: Carlos and Tanya signed a separation agreement. Carlos died during divorce proceedings. The separation agreement provides that Tanya keeps certain assets and waives future claims. Whether Tanya can be prevented from asserting a full surviving-spouse claim depends on whether that separation agreement is enforceable as a contract and on what the Probate Act allows.

What an executor or interested person should do

Confirm marital status at death. Obtain the marriage certificate and the divorce case file (if any) to determine whether a final decree exists.
Gather estate planning documents: will, trusts, prenuptial or separation agreements, beneficiary designations, and account statements.
Identify potential statutory claims: family allowance, homestead, exempt property, or intestate share.
Talk to a probate attorney if there is any dispute over whether the deceased was legally divorced at death or whether an estranged spouse should share in the estate.
If you are the estranged spouse, preserve evidence of marriage, separation agreements, and any financial or caregiving arrangements that may affect equitable claims.

Timing and contest issues

Probate timelines and deadlines matter. If someone believes they qualify as a surviving spouse or that they have a statutory claim, filing the appropriate claim or raising the issue early in the probate process is important. Executors should give formal notice to known heirs and potential claimants and follow Illinois probate notice rules. Failing to raise a claim promptly can limit options.

When the situation is more complex

Situations that commonly require lawyer guidance include:

There is a written separation agreement or divorce settlement that might affect property rights.
The decedent executed wills or beneficiary designations that conflict with statutory spousal entitlements.
There are children from more than one relationship and disputes over the intestate computation arise.
A spouse claims relief as a contract beneficiary under a separation agreement or other instrument.

Helpful Hints

Do not assume that separation or a pending divorce eliminates the spouse’s inheritance rights. Only a final court decree does that.
Collect key documents quickly: marriage certificate, death certificate, will, divorce pleadings, separation agreements, and beneficiary forms.
If you are an executor, treat the estranged spouse as a likely claimant until you confirm a final divorce decree.
If you are the estranged spouse, assert your rights early: ask the probate court about family allowance or homestead relief if you need immediate support.
Keep careful records of any financial support, contributions to marital property, and communications that may affect who should receive what.
When in doubt, consult a probate attorney experienced with Illinois estates and family-law intersections—timing is often crucial.

Where to read the law

Read the Illinois Probate Act for the statutory rules that apply to wills, intestate succession, the family allowance, homestead protection, and probate procedure: 755 ILCS 5 — Probate Act of 1975 (Illinois). For family-law (divorce) procedures and final judgments, consult the Illinois Marriage and Dissolution of Marriage Act and the local circuit court rules handling dissolution cases.

Final note / Disclaimer

This document is an informational overview about Illinois law and is not legal advice. It does not create an attorney-client relationship. For advice about a specific situation, speak with a licensed Illinois attorney who can review the facts and the relevant documents and provide guidance tailored to your case.