If a husband dies leaving his home to his daughter, what recourse does the wife have?

Full question:

If someone dies and has been married to his wife for 20 years, and in his will leaves the house that he shared with his wife to his adult daughter, does the wife have any recourse?

• Category: Wills and Estates
• Date: 04/07/2025
• State: Illinois

Answer:

If title to the house was in both the husband's name and the wife's name as tenants by the entirety or as joint tenants with full rights of survivorship, the house will pass to the surviving spouse in regardless of what the will says.

The surviving spouse also has the right to renounce the will.

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.

In order to renounce a will, the testator's surviving spouse must file in the court in which the will was admitted to probate a written instrument signed by the surviving spouse and declaring the renunciation. The time of filing the instrument is:

(1) within 7 months after the admission of the will to probate or
(2) within such further time as may be allowed by the court if, within 7 months after the admission of the will to probate or before the expiration of any extended period, the surviving spouse files a petition therefore setting forth that litigation is pending that affects the share of the surviving spouse in the estate.

The filing of the instrument is a complete bar to any claim of the surviving spouse under the will.

If a will is renounced in the manner provided by this Section, any future interest which is to take effect in possession or enjoyment at or after the termination of an estate or other interest given by the will to the surviving spouse takes effect as though the surviving spouse had predeceased the testator, unless the will expressly provides that in case of renunciation the future interest shall not be accelerated.

If a surviving spouse of the testator renounces the will and the legacies to other persons are thereby diminished or increased in value, the court, upon settlement of the estate, shall abate from or add to the legacies in such a manner as to apportion the loss or advantage among the legatees in proportion to the amount and value of their legacies.

Finally, the surviving wife may have rights to the property under the homestead law of Illinois that cannot not be lost upon the death of her husband.