Political notions aside, many people, both heterosexual and homosexual, may be at risk of passing their estate in a manner that does not suit their desires. Despite the rapidly changing mores and norms of modern society, increasingly accepting of committed co-habitation among unmarried couples, the estate planning and probate laws are slow reflect these changing standards.

As a result of most probate courts strict compliance with the probate code, unmarried couples must be especially careful to plan their estates properly or risk leaving the couple’s surviving member “out in the cold” and perhaps, without assets that the deceased member of the couple intended for the remaining member.


The probate laws provide a number of “back up” or “safety” provisions to assure that surviving spouses are provided for in the event that a deceased spouse forgets or purposely fails to provide for them.

In the event that a married person dies without a will, the law provides for surviving married persons in the Illinois Probate Act at 755 ILCS 5/2-1 in the Rules of Descent and Distribution which reads, in part, as follows:

The intestate real and personal estate of a resident decedent and the intestate real estate in this State of a nonresident decedent, after all just claims against his estate are fully paid, descends and shall be distributed as follows:

(a) 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.

In addition, the act provides protection, at least for a portion of an estate, in the case where a spouse is intentionally or unintentionally disinherited in a will. The renunciation of will by spouse law, Illinois Probate Act at 755 ILCS 5/2-8, provides that a spouse may, despite whatever is contained in a will, elect to take up to one half of a probate estate. The law provides, in part, as follows:

(a) If a will is renounced by the testator’s surviving spouse, whether or not the will contains any provision for the benefit of the surviving spouse, the surviving spouse is entitled to the following share of the testator’s estate after payment of all just claims: 1/3 of the entire estate if the testator leaves a descendant or 1/2 of the entire estate if the testator leaves no descendant.

These rules, of course, apply only to probate property. Other items, held jointly or with a named beneficiary are usually not subject to such rules. That said, these two provisions of the code provide great protection for most married couples.


These probate laws offer absolutly no help to unmarried couples, no matter how long they have lived together and no matter how dedicated their relationship. This theory was recently put to the test in the case of In re Estate of Andrea Marie Hall which was decided by the First District of the Illinois Appelate Court on December 31, 1998.

In the Estate of Hall case, an unmarried woman sought to inherit a portion of her “life-partner’s” estate as a “surviving spouse” under the intestate succession rules of descent and distribution. The couple had been together from 1988 to Andrea Hall’s death in 1996. The couple had been “married” in a private ceremony in 1995 but had not attempted to legalize the union in the face of the State of Illinois’ prohibition on same sex marriage. The appeals court determined that regardless of the Constitutionality of the Illinois Marriage Act requirement that a “man and woman” be married, the parties in the alleged “marriage” had not taken the requisite steps to legalize their private ceremony. As such, even had the law been unconstitutional, the court could not confer the status of “spouse” upon the surviving member of the couple.


Steps should be taken by all unmarried co-habitating couples to plan their estates so that the above scenario does not take place. An updated will, coupled with correct titling of various assets and perhaps even a co-habitation agreement can provide the same result for unmarried couples as married couples currently enjoy. Although the statutory “safe harbors” will not exist, an unmarried couple can, with correct planning, assure that their desires are met upon their deaths.

A few of the common techniques employed in planning for unmarried couples are the preparation of a up to date wills providing for the surviving memeber of the couple, joint titleing of assets such as homes, cars, stocks and bank accounts, proper designations of beneficiaries on life insurance and benefit plans and finally, the preparation of powers of attorney for property and health care in the event of disability. Without these items, blood relatives can receive and make decisions about property and even the health of a person to the exclusion of the other member of the unmarried couple.


An attorney can help you and your partner evaluate your current situation and plan for a seamless asset transfer as well as plan for all of the other natural areas of estate planning, such as estate tax savings and other items. Do not get caught when it is too late. Planning should be proactive and done when there is the least likelihood of death. We want to be prepared for the suprises of life and death.