When an Illinois resident dies without a valid will or trust, their estate passes according to the state's intestate succession laws. Understanding these rules is critical for anyone who wants to ensure their assets are distributed according to their wishes, rather than a predetermined legal formula. Illinois intestate succession is governed by the Illinois Probate Act, specifically 755 ILCS 5/2-1, which establishes a strict hierarchy of beneficiaries based on family relationships. This guide provides a comprehensive overview of how intestate succession works in Illinois, who inherits what under various scenarios, and why proper estate planning can help you avoid the limitations and complications of dying intestate.
What Is Intestate Succession?
Intestate succession refers to the legal process that determines how a deceased person's property is distributed when they die without a valid will or other estate planning documents. The term "intestate" literally means "without a testament" or will. When someone dies intestate in Illinois, the state steps in with a default plan that distributes assets based on family relationships. This statutory scheme applies regardless of what the deceased person might have wanted or what their family members believe is fair. The intestacy laws are designed to approximate what most people would want, favoring spouses and close blood relatives, but they cannot account for individual circumstances, blended families, or personal preferences.
Intestacy Applies Only to Probate Assets
It's important to understand that intestate succession laws only govern probate assets—property held solely in the deceased person's name without a designated beneficiary. Assets with beneficiary designations (life insurance, retirement accounts, payable-on-death accounts) or jointly owned property with survivorship rights pass outside of intestacy laws directly to the named beneficiaries or surviving co-owners.
The Illinois Probate Act and Intestate Succession Rules
Illinois intestate succession is codified in the Illinois Probate Act of 1975, particularly in Article II, which covers intestate succession and wills. The primary statute, 755 ILCS 5/2-1, lays out the distribution scheme based on which relatives survive the decedent. The law establishes a clear hierarchy: surviving spouse first, then descendants (children, grandchildren), then parents, then siblings, and so on through more distant relatives. If absolutely no relatives can be found, the estate escheats to the state of Illinois. The Illinois rules have some unique features that differ from other states, particularly in how they treat spouses when there are also descendants, and in the treatment of certain types of children and relatives.
"If there is a surviving spouse and also a descendant of the decedent: 1/2 of the entire estate to the surviving spouse and 1/2 to the decedent's descendants per stirpes. If there is no surviving spouse but a descendant of the decedent: the entire estate to the decedent's descendants per stirpes."
755 ILCS 5/2-1(a) and (b)
Who Inherits Under Illinois Intestate Succession Law
The distribution of an intestate estate in Illinois depends entirely on which family members survive the decedent. Illinois law creates different distribution schemes for various family configurations, ensuring that the closest living relatives receive the estate. Below is a detailed breakdown of how assets are distributed in the most common scenarios.
Distribution Scenarios
| Family Situation | Who Inherits | Share of Estate |
|---|---|---|
| Spouse + Descendants (all descendants are of the marriage) | Entire estate to surviving spouse | 100% to spouse |
| Spouse + Descendants (at least one descendant from outside the marriage) | Spouse and descendants share | 50% to spouse, 50% to descendants per stirpes |
| Spouse + No descendants, but parents or siblings | Entire estate to surviving spouse | 100% to spouse |
| No spouse + Descendants | All descendants per stirpes | 100% to descendants |
| No spouse + No descendants, but parents | Both parents equally, or surviving parent | 100% to parent(s) |
| No spouse + No descendants + No parents, but siblings | All siblings and descendants of deceased siblings | 100% divided among siblings per stirpes |
| No spouse + No descendants + No parents + No siblings, but grandparents | Divided equally among maternal and paternal grandparents | 50% to each side |
Married with Children: Special Illinois Rules
Illinois has a unique approach when a decedent is survived by both a spouse and descendants. The key question is whether all of the decedent's descendants are also descendants of the surviving spouse. If all descendants are children of both the decedent and the surviving spouse, the surviving spouse inherits the entire estate. This rule recognizes that in traditional nuclear families, the surviving spouse will typically provide for the mutual children. However, if any descendant is not also a descendant of the surviving spouse—such as a child from a previous relationship—then the estate is split 50/50 between the surviving spouse and all of the decedent's descendants per stirpes. This protects children from prior relationships who might otherwise be disinherited.
Blended Families Face Complex Issues
The 50/50 split rule can create unexpected results in blended families. For example, if you have three children from a first marriage and remarry, your new spouse would receive only half of your intestate estate, with the other half divided among your children. If you have minor children from your first marriage, this could mean your current spouse has insufficient resources while also potentially needing to interact with your children or their guardians regarding estate administration. Proper estate planning with a will or trust can address these issues directly.
Understanding Per Stirpes Distribution
Illinois uses "per stirpes" distribution when dividing assets among descendants. Per stirpes is a Latin term meaning "by branch" or "by roots." Under this method, if a child of the decedent has predeceased but left their own children (the decedent's grandchildren), those grandchildren step into their parent's shoes and collectively receive the share their parent would have received. This ensures that each family branch receives an equal portion. For example, if you die with two children, one living and one deceased, and the deceased child left three grandchildren, your estate would be divided in half: 50% to your living child and 50% divided equally among the three grandchildren (16.67% each). This differs from "per capita" distribution, which some states use, where all living members of the same generation share equally.
Per Stirpes Distribution Examples
Scenario: John dies intestate with no spouse but three living children: Amy, Bob, and Carol.
Distribution: The estate is divided equally among the three children. Amy receives 1/3, Bob receives 1/3, and Carol receives 1/3. This is straightforward as all children are living and distribution occurs at the first generational level.
Distribution: The estate is divided equally among the three children. Amy receives 1/3, Bob receives 1/3, and Carol receives 1/3. This is straightforward as all children are living and distribution occurs at the first generational level.
Who Qualifies as a Surviving Spouse?
To inherit as a surviving spouse under Illinois intestacy laws, the couple must have been legally married at the time of death. This includes same-sex marriages, which Illinois has recognized since 2014. However, several situations can affect whether someone qualifies as a surviving spouse. If the couple was legally divorced before death, the former spouse has no inheritance rights. If divorce proceedings were pending but not finalized, the person generally still qualifies as a surviving spouse. Illinois also recognizes common law marriages that were validly created in other states that allow common law marriage, though Illinois itself does not allow creation of new common law marriages. A spouse who abandoned the decedent or was found to be at fault in certain ways may be barred from inheritance under specific circumstances.
"A surviving spouse who has forfeited the right to inherit from the deceased spouse under Section 2-6.2 of this Act shall not be entitled to an intestate share of the estate."
755 ILCS 5/2-1 (Note: Section 2-6.2 addresses forfeiture due to abandonment or lack of support)
Children's Rights: Biological, Adopted, and Stepchildren
Illinois intestacy law treats various categories of children differently, and understanding these distinctions is crucial for predicting how an estate will be distributed.
All biological children of the decedent inherit equally under intestacy laws, regardless of whether the parents were married when the child was born. Children born outside of marriage have the same inheritance rights as children born during marriage. The child must be able to prove the parent-child relationship, which is generally straightforward if the decedent is the mother but may require additional evidence if the decedent is the father, such as a paternity test, acknowledgment of paternity, or legal determination of parentage.
Children who are legally adopted have the exact same inheritance rights as biological children under Illinois law. Once an adoption is finalized, the adopted child is treated as a natural child of the adoptive parents for all purposes, including intestate succession. Conversely, adoption severs the legal relationship with the biological parents (except in stepparent adoptions), meaning adopted children generally do not inherit from their biological parents' intestate estates.
Stepchildren and foster children have no automatic inheritance rights under Illinois intestacy laws unless they have been legally adopted by the stepparent or foster parent. Many people mistakenly assume that long-term stepparent-stepchild relationships create inheritance rights, but this is not the case. If you want your stepchildren or foster children to inherit from your estate, you must specifically name them in a will or include them as beneficiaries in a trust. This is one of the most common estate planning oversights in blended families.
Children who are conceived before the decedent's death but born afterward (posthumous children) are treated as having been born during the decedent's lifetime and have full inheritance rights. Illinois law protects these children to ensure they receive their intestate share. The calculation and distribution may be delayed until the child is born, but they are entitled to inherit as if they had been born before the parent's death.
Illinois law addresses the increasingly common situation of children conceived using assisted reproductive technology after a parent's death. Under 755 ILCS 5/2-3, a child conceived using genetic material from a deceased parent may inherit if certain conditions are met: the deceased parent consented in writing to posthumous conception and to the child's inheritance rights, and the child is in utero within 36 months of the parent's death or born within 45 months of the parent's death. Without clear written consent, these children may not be able to inherit through intestacy.
When inheritance passes to the decedent's siblings (because there is no surviving spouse, descendants, or parents), Illinois law treats half-siblings and whole siblings equally. Half-siblings—those who share only one parent with the decedent—receive the same share as whole siblings who share both parents. This equal treatment applies whether the shared parent is the mother or father. Some states give half-siblings a reduced share, but Illinois does not make this distinction.
Unique Illinois Intestacy Rules
While intestacy laws share common features across states, Illinois has several distinctive rules and approaches that set it apart from other jurisdictions. Understanding these unique provisions is essential for Illinois residents and for attorneys practicing in the state.
1
All-to-Spouse Rule for Same-Descendant Families
Illinois gives the entire estate to the surviving spouse if all of the decedent's descendants are also descendants of that spouse. Many states divide the estate between spouse and children regardless of whether the children are mutual. This Illinois rule recognizes the reality that in intact nuclear families, the surviving spouse will naturally provide for mutual children. However, this makes Illinois law particularly complex in blended family situations.
2
Extended Posthumous Conception Window
Illinois provides one of the more generous timeframes in the nation for posthumously conceived children to qualify for inheritance: the child must be in utero within 36 months or born within 45 months of the parent's death. Many states have much shorter windows or don't address this issue at all. However, Illinois also requires explicit written consent from the deceased parent.
3
Grandparents and More Distant Relatives
If the estate passes beyond siblings, Illinois divides the estate between the maternal and paternal grandparents or their descendants. The estate is split 50/50 between the two sides of the family, even if one side has many relatives and the other has only one. If an entire side has no surviving members, the whole estate goes to the other side.
4
No Inheritance for Non-Relatives
Illinois is strict about the requirement of a blood or legal relationship. Unmarried partners, no matter how long the relationship, have no inheritance rights under intestacy laws. Friends, caregivers, and non-legal family members also cannot inherit through intestacy. If no relatives can be found, the entire estate escheats to the State of Illinois. This underscores the importance of having a will if you want anyone outside your legal family to inherit.
The Probate Process for Intestate Estates
When someone dies intestate in Illinois, their estate must generally go through probate court proceedings. The court will appoint an administrator (rather than an executor named in a will) to manage the estate. This person is typically a close family member, often the surviving spouse or an adult child. The administrator must identify and collect all probate assets, pay valid debts and taxes, and distribute the remaining assets according to the intestacy statutes. The process can take anywhere from several months to over a year, depending on the complexity of the estate and whether any disputes arise. Dying intestate can make the probate process more complicated and expensive than it needs to be, as there is no clear statement of the decedent's wishes and no named executor with authority to act immediately.
Problems and Complications of Dying Intestate
While intestacy laws provide a default plan, dying without a will creates numerous problems and limitations that proper estate planning can avoid. The intestacy formula cannot account for your individual circumstances, wishes, or family dynamics. Some of the most common problems include: unintended beneficiaries receiving assets (or intended beneficiaries receiving nothing), minor children receiving large inheritances without proper management structures, inability to minimize estate taxes, no ability to name guardians for minor children, potential family conflicts over who should serve as administrator, delay and expense in the probate process, and no ability to leave specific items to specific people. In blended families, intestacy rules can create particularly problematic outcomes that leave neither the spouse nor children from prior relationships adequately provided for.
Critical Points About Illinois Intestate Succession
- Illinois intestacy laws follow a strict hierarchy: spouse first, then descendants, then parents, then siblings, and then more distant relatives
- Spouses inherit the entire estate if all descendants are also descendants of the spouse; otherwise, the estate is split 50/50 between spouse and descendants
- Illinois uses per stirpes distribution, meaning deceased children's shares pass to their own children by representation
- Legally adopted children have full inheritance rights, but stepchildren and foster children have no automatic rights unless adopted
- Half-siblings inherit equally with whole siblings under Illinois law
- Posthumously conceived children can inherit if the deceased parent gave written consent and strict timeframes are met
- The intestacy formula cannot account for your personal wishes, tax planning, or family circumstances—a will or trust is essential for control
How to Avoid Intestacy: Estate Planning Essentials
The single most important thing you can do to avoid the complications and limitations of intestacy is to create a comprehensive estate plan. At minimum, this should include a properly executed will that clearly states who should receive your assets, who should serve as executor, and who should serve as guardian for any minor children. Many people also benefit from establishing a revocable living trust, which can help assets avoid probate entirely and provide more sophisticated planning for tax minimization, asset protection, and controlled distributions. Beyond wills and trusts, a complete estate plan includes beneficiary designations on retirement accounts and life insurance, powers of attorney for financial and healthcare decisions, and advance healthcare directives.
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Estate Planning Is Not Just for the Wealthy
Many people mistakenly believe that estate planning is only necessary for wealthy individuals. In reality, anyone who wants control over who inherits their assets, who makes decisions for their children, or how their end-of-life care is handled needs an estate plan. The intestacy laws make no distinction based on the value of your estate. Don't leave these critical decisions to a statutory formula that doesn't know you or your family. To learn more about the estate planning process, visit our estate planning overview or book a consultation with our experienced Illinois estate planning attorneys.
Real-World Scenarios: Intestacy in Practice
To better understand how Illinois intestacy laws operate in practice, consider these realistic scenarios that illustrate common situations and their outcomes.
Facts: Michael and Jennifer are married with three children together, ages 8, 12, and 15. Michael dies suddenly without a will. His probate estate is valued at $400,000.
Outcome: Because all of Michael's descendants are also Jennifer's descendants, Jennifer inherits the entire $400,000 estate under Illinois law. However, Jennifer now has the responsibility of managing these assets without any guidance from Michael about his specific wishes.
Outcome: Because all of Michael's descendants are also Jennifer's descendants, Jennifer inherits the entire $400,000 estate under Illinois law. However, Jennifer now has the responsibility of managing these assets without any guidance from Michael about his specific wishes.
Facts: David has two adult children from his first marriage. He remarries Susan, who has no children. David and Susan have one child together, age 5. David dies intestate with a probate estate of $600,000.
Outcome: Because David has descendants who are not descendants of Susan, the estate is split 50/50. Susan receives $300,000, and the three children collectively receive $300,000 ($100,000 each). This may create financial hardship for Susan while raising their young child.
Outcome: Because David has descendants who are not descendants of Susan, the estate is split 50/50. Susan receives $300,000, and the three children collectively receive $300,000 ($100,000 each). This may create financial hardship for Susan while raising their young child.
Facts: Lisa is a 45-year-old single woman with a long-term partner, James, with whom she has lived for 15 years but never married. Lisa's mother is deceased, but her father is living. She dies intestate with an estate valued at $800,000.
Outcome: Lisa's father inherits the entire $800,000. James, despite their 15-year relationship, receives nothing because they were not legally married.
Outcome: Lisa's father inherits the entire $800,000. James, despite their 15-year relationship, receives nothing because they were not legally married.
Facts: Robert dies intestate, unmarried, with no children. Both parents are deceased. He has one living full sibling (Sarah) and two half-siblings from his mother's first marriage (Tom and Patricia). Patricia died several years before Robert, leaving behind three children.
Outcome: The estate divides into three equal shares. Sarah receives 1/3. Tom receives 1/3. Patricia's 1/3 passes per stirpes to her three children, who each receive 1/9 of the total estate.
Outcome: The estate divides into three equal shares. Sarah receives 1/3. Tom receives 1/3. Patricia's 1/3 passes per stirpes to her three children, who each receive 1/9 of the total estate.
Facts: Amanda and Brian are married in their early 30s with two young children. Both die in an accident without wills. They have $200,000 in probate assets plus $500,000 in life insurance and retirement accounts with no contingent beneficiaries named.
Outcome: The children inherit everything but as minors, the court must appoint a guardian of the estate. At age 18, they receive full access with no restrictions. Critically, Amanda and Brian never designated who should raise their children—the court must decide. This could have been avoided entirely with a will naming guardians and establishing trusts. Schedule a consultation to protect your family.
Outcome: The children inherit everything but as minors, the court must appoint a guardian of the estate. At age 18, they receive full access with no restrictions. Critically, Amanda and Brian never designated who should raise their children—the court must decide. This could have been avoided entirely with a will naming guardians and establishing trusts. Schedule a consultation to protect your family.
When to Consult an Estate Planning Attorney
While understanding Illinois intestacy laws is valuable, it should primarily serve as motivation to create a proper estate plan rather than to rely on the default statutory scheme. If you currently have no will or trust, if your documents are more than five years old, if you've experienced major life changes, if you have a blended family, minor children, a business, concerns about estate taxes, or want to ensure specific people or organizations receive your assets, you should consult with an experienced Illinois estate planning attorney. Our firm focuses on helping Illinois families create comprehensive, customized estate plans that provide security and peace of mind. Contact us today to discuss your estate planning needs and ensure your legacy is protected according to your wishes, not the state's default rules.
Understanding intestate succession in Illinois is essential for recognizing what happens when someone dies without proper estate planning documents. While the Illinois Probate Act provides a distribution scheme designed to approximate what most people would want, it cannot account for individual circumstances, family dynamics, or personal preferences. Whether you're concerned about protecting a surviving spouse, ensuring children from different relationships are treated fairly, providing for an unmarried partner, or simply maintaining control over who receives your assets, the solution is the same: create a comprehensive estate plan with the help of an experienced attorney.