Illinois Spousal Award in Probate: The $20,000 Minimum and Elective Share

When a spouse dies in Illinois and their estate goes through probate, the surviving spouse has two powerful statutory rights that most families are not aware of until it is too late to use them. The first is the Spousal Award — a minimum cash payment of $20,000 that must be paid to the surviving spouse before general creditors are paid. The second is the Elective Share — the right to ignore what the will says and instead take a guaranteed portion of the estate. Both rights are time-limited, and both can dramatically change the financial outcome of estate settlement.

What Is the Illinois Spousal Award?

The Illinois Probate Act (755 ILCS 5/15-1) entitles the surviving spouse to an award from the estate for their support during the period of estate administration — typically the nine months following the death. The purpose is to ensure the surviving spouse can maintain their standard of living while the estate is being settled, even if the will makes no provision for them or leaves them in a disadvantageous position.

The statutory minimums are:

• $20,000 for the surviving spouse
• $10,000 per minor or adult dependent child living with the surviving spouse at the time of death
• $5,000 for adult dependent children not living with the surviving spouse (provided the deceased was contributing to their support immediately before death)

The court determines the actual amount based on what is "reasonable" for the proper support of the surviving spouse, taking into account the spouse's accustomed standard of living and the condition of the estate. The $20,000 and $10,000 figures are absolute statutory floors — the court can award more, but not less.

The award is typically paid in up to three installments over the nine-month period.

Priority: The Award Comes Before Creditors

This is the most financially important feature of the Spousal Award: it sits above general unsecured creditors in the statutory priority order for estate claims.

Under the Illinois Probate Act, claims against the estate are paid in this order:

1. Funeral and burial expenses (and expenses of estate administration)
2. Surviving spouse's and children's awards ← This is where the Spousal Award falls
3. Federal taxes
4. Medical and hospital costs within 24 months of death
5. State taxes
6. Other claims (general creditors)

This means that even if the deceased had significant credit card debt, medical bills, or personal loans, those creditors cannot be paid until the Spousal Award is satisfied. In an estate with limited assets, this priority can mean the difference between the surviving spouse receiving meaningful support or receiving nothing while creditors collect everything.

How to Claim the Spousal Award

The Spousal Award is not paid automatically. The surviving spouse must petition the probate court for it. In practice, this means:

1. Opening a formal probate estate (if one is not already open)
2. Filing a Petition for Spouse's Award (or a combined petition) in the circuit court where probate is pending
3. Demonstrating the spouse's financial need and standard of living (if asking for an amount above the $20,000 minimum)
4. Receiving a court order approving the award
5. Receiving payment from the estate representative in installments

There is no rigid deadline for filing a Petition for Spouse's Award tied to the death itself, but it is practical to file it early in the probate proceeding. Once filed, the award must be addressed before general creditor claims are paid.

Do not waive the Spousal Award without understanding what you are giving up. Wills drafted by out-of-state attorneys or generic online services sometimes contain language asking the surviving spouse to waive the statutory award in exchange for other bequests. Before agreeing to such a waiver, consult an Illinois probate attorney — the $20,000 minimum may be worth more than the bequest, and the waiver freezes your access to immediate cash during a difficult period.

If you are unsure whether to claim the Spousal Award, renounce the will for the Elective Share, or accept the will's provisions, the Illinois Survivor Benefits Navigator walks through the full analysis in plain English with a step-by-step guide to each process.

Awards for Minor and Dependent Children

In addition to the spousal award, the court will set an award for each minor or dependent child residing in the household. The minimum is $10,000 per child. Like the spousal award, the child's award takes priority over general creditors.

For adult children not living with the surviving spouse, the minimum is $5,000, but only if the deceased was contributing to their support at the time of death. An adult child who was fully financially independent would typically not qualify.

If there is no surviving spouse, the award for minor children may be increased to compensate.

The Elective Share: Overriding the Will

Illinois law also gives the surviving spouse the right to renounce the will and instead take a statutory "elective share" of the probate estate. This right exists to prevent a surviving spouse from being disinherited by a will (or from being left a token amount while the bulk of the estate passes to children from a prior relationship or to other beneficiaries).

The elective share amounts are:

• One-third of the net estate if the deceased left living descendants (children, grandchildren)
• One-half of the net estate if the deceased left no living descendants

The "net estate" means the probate estate after deducting estate debts, taxes, and administration expenses — but before paying bequests under the will.

When Does the Elective Share Make Sense?

The elective share is most valuable when:

• The will leaves the surviving spouse significantly less than one-third (or one-half) of the estate
• Most of the estate passes to children from a prior marriage, trusts, or other beneficiaries
• The surviving spouse needs liquidity and the will's provisions are structured around long-term assets (e.g., a house but no cash)

It is less valuable when the will already provides the surviving spouse with more than the statutory share, or when most assets pass outside of probate (through joint tenancy, beneficiary designations, or trusts) and are therefore not part of the probate estate on which the elective share is calculated.

The 7-Month Deadline

To exercise the right to an elective share, the surviving spouse must file a written election with the probate court within 7 months of the date the will is admitted to probate. This deadline is strict. Miss it and the right to the elective share is permanently forfeited — the spouse is bound by whatever the will provides.

The 7-month clock starts when the will is admitted to probate, not from the date of death. If probate is opened promptly, this could mean the election is due within 7–8 months of the death. If probate is delayed for months, the window shifts accordingly.

The Spousal Award vs. the Elective Share: Key Differences

These are two different rights, and claiming one does not preclude claiming the other.

What if the Estate Has No Liquid Assets?

If the estate's primary asset is real property and there is little cash, paying the Spousal Award can create practical difficulties. Options include:

• The estate can borrow against the property to fund the award
• The court can authorize a sale of estate property to satisfy the award
• The court may approve a deferred payment schedule if immediate payment is genuinely impossible

The surviving spouse does not forfeit the award simply because the estate lacks cash — the award is a legal obligation of the estate, not a discretionary payment.

Practical Next Steps

1. Confirm that a probate estate is open (or open one if needed). The Spousal Award is only available through the probate process.
2. File the Petition for Spouse's Award early — before general creditors are paid.
3. Evaluate the will against the Elective Share. Have an Illinois probate attorney compare what the will provides versus what 1/3 (or 1/2) of the net estate would be. The math may strongly favor renouncing.
4. Track the 7-month deadline for the Elective Share from the date the will is admitted to probate.

See also: Illinois Probate Process and Illinois Estate Tax for a full picture of the estate settlement process.

The Spousal Award and Elective Share are among the most financially significant rights a surviving spouse has in Illinois — and among the most commonly overlooked. The Illinois Survivor Benefits Navigator includes a step-by-step guide to claiming both, with the exact motion templates and filing instructions for the major Illinois counties.

See more Illinois guides →