Update every estate document once the divorce judgment is entered. Illinois cancels some gifts to a former spouse automatically, in wills, revocable trusts and property powers of attorney. But life insurance rules have exceptions, and other beneficiary forms follow their own rules. Read each form. Do not trust the law to have fixed all of it.
Nothing changes until the judgment
A will is not revoked by a change in your marital status, with one exception. Under 755 ILCS 5/4-7(b), a dissolution of marriage revokes every legacy, interest, power of appointment and nomination to a fiduciary office given to the former spouse in a will signed before the judgment. The will then works as if the former spouse died before you.
The key word is judgment. A filed case, a separation or a long wait does not trigger it. While the case is pending, your will still names your spouse. If something happened to you tomorrow, that would count. Ask whether a new will makes sense before the judgment is entered.
Wills
The statute cleans up gifts and fiduciary roles for the ex-spouse in a will signed before the judgment. That can leave a hole. If the ex-spouse was your executor, the role passes to your backup, if you named one. If you named none, the court picks. If the ex-spouse was to get the house, the law treats that person as having died first, so what happens to the house depends on what your will says next.
A new will lets you choose on purpose. See wills in Illinois.
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Guardians for your children
A parent can name a guardian for a minor child in a will or other witnessed writing (755 ILCS 5/11-5(a-1)). The statute on divorce speaks of gifts, powers and nominations to fiduciary office. It does not tell you who will raise your children. Name your choice again, in a new document, so no one has to guess. Custody orders can affect this choice, so bring yours to the call. See the page on child custody too.
Revocable trusts
For a revocable trust signed after January 1, 1982, a judgment ending the marriage revokes every provision the settlor can revoke that pertains to the former spouse, unless the trust or the judgment says otherwise. The trust is then run as if the former spouse died on the day of the judgment (760 ILCS 3/605(b)). If you remarry the same person, the revoked provisions come back (605(e)).
Two limits. A trustee who did not know about the divorce is not liable for acting in good faith (605(c)). And the section affects provisions you can revoke, so check with an attorney on a trust that is irrevocable. Read the page on revocable living trusts.
Powers of attorney
For a property power of attorney, a judgment of dissolution or legal separation means the spouse is treated as having died at the time of the judgment, for all purposes of the agency (755 ILCS 45/2-6(b)). So an ex-spouse agent stops serving, and the next agent you named steps in, if you named one.
For a health care power of attorney, do not wait. The Illinois Power of Attorney Act lets you revoke it with a written revocation signed and dated by you, among other methods (755 ILCS 45/4-6). Sign a new one and give copies to your doctor and to the person you name. Read about property powers of attorney.
Beneficiary forms are where the law gets thin
For life insurance, the divorce statute says a beneficiary designation of a former spouse is not effective unless the judgment names the former spouse, you name the former spouse again after the judgment, or the former spouse is named in trust for a child or dependent. If the designation fails, the money goes to the backup beneficiary, or if none, to your estate (750 ILCS 5/503(b-5)).
There is a catch. That rule does not apply to policies under ERISA, federal employee group life, or other federal law that overrides it (503(b-5)(5)). The section is about life insurance. It does not speak to retirement accounts. Check each form, and keep the support rules in your judgment in view. Some judgments require a former spouse to stay on a policy to secure support. That is the one case where leaving a name is a duty and not a mistake.
A short checklist
- Get a copy of the judgment and read what it says about insurance and property.
- Sign a new will.
- Review or restate any revocable trust.
- Sign new property and health care powers of attorney.
- Pull every beneficiary form: life insurance, retirement accounts, bank payable on death forms.
- Check any transfer on death instrument on real estate.
- Re-title assets the judgment gave you.
The page on estate planning after divorce has more on the process, and the divorce page covers the case that comes first.
Questions people ask
Does divorce cancel my ex-spouse in my will in Illinois?
Yes, for a will signed before the judgment. A dissolution revokes gifts and fiduciary roles for the former spouse, and the will is read as if that person died first (755 ILCS 5/4-7(b)).
Does my ex-spouse stay my life insurance beneficiary?
Not unless the judgment names the ex-spouse, you redesignate after the judgment, or the person holds it in trust for a child. Policies under ERISA and some federal plans are outside that rule (750 ILCS 5/503(b-5)).
What about my retirement account?
The Illinois section quoted here speaks to life insurance. Check the account's own beneficiary form and update it after the judgment.
Does a separation change my will?
No. The will statute points to a dissolution of marriage or a declaration of invalidity. A separation alone is not on that list.
Can an ex-spouse still act under my power of attorney?
For a property power of attorney, a judgment ends the spouse's role (755 ILCS 45/2-6(b)). Sign new documents anyway so the choice is written down.
Sources
- 755 ILCS 5/4-7 and 11-5 (Probate Act of 1975), Illinois General Assembly
- 760 ILCS 3/605 (Illinois Trust Code), Illinois General Assembly
- 755 ILCS 45/2-6 and 4-6 (Illinois Power of Attorney Act), Illinois General Assembly
- 750 ILCS 5/503(b-5), Illinois General Assembly
Reviewed by Jeff McCarthy, Attorney, Inspired Law Group, 136 E 9th St, Lockport, IL 60441.
This page is general legal information about Illinois law. It is not legal advice, it does not create an attorney client relationship, and it does not account for the facts of any particular case.
