Updated September 5, 2026. Quick answer: Illinois’s elective share is not the one-third-of-everything, marriage-length figure most national pages describe. 1/3 of the entire estate if the decedent leaves a descendant; 1/2 of the entire estate if no descendant
What Illinois actually sets out
| What the statute sets out | What it says |
|---|---|
| 755 ILCS 5/2-8 | “the surviving spouse is entitled to… 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” |
| The share and what it is measured against | 1/3 of the entire estate if the decedent leaves a descendant; 1/2 of the entire estate if no descendant; measured against the ‘entire estate’ (essentially the probate estate) after payment of just claims; no augmented-estate pull-back of trusts or non-probate transfers. |
| Regime type | flat fraction, not tied to marriage length |
| Can it be waived | renunciation rights can be waived by a valid prenuptial or postnuptial agreement |
| Time limit to file | must file within 7 months after the will is admitted to probate, or such further time as the court allows |
How it works in practice
- The share is measured against the ‘entire estate’ (essentially the probate estate) after payment of just claims; no augmented-estate pull-back of trusts or non-probate transfers.
- Partially. This state’s formula is limited to the property described above, which does not reach a properly funded revocable trust the same way an augmented-estate state’s formula does, so trust planning can change the outcome here specifically, though it does not change the analysis in a state with an augmented-estate formula.
- Waiver: Renunciation rights can be waived by a valid prenuptial or postnuptial agreement.
- The election has to be affirmatively filed on a deadline: must file within 7 months after the will is admitted to probate, or such further time as the court allows.
The national picture, including the Uniform Probate Code sliding-scale schedule that a minority of states actually use, is on the elective share calculator page; this page is the record for Illinois specifically, and its own numbers above should be used instead of the calculator’s national default for a Illinois estate. The one thing that reliably defeats an elective share in every state that has one is explained on whether a prenup can waive the elective share. A newly widowed reader working through the fuller list of irreversible decisions, of which this is one, can start from the surviving spouse checklist.
What this page does not settle
- This session confirmed the core figure above against a primary or verbatim-mirror source, with one open point: Official ilga.gov pages returned 404; quote from FindLaw’s verbatim mirror.
- A state can amend or repeal this section without the page around it changing, and a detail specific to a reader’s own situation, such as a pending divorce, a premarital agreement, or property held jointly with right of survivorship, can change which part of the statute actually applies.
- Whether a revocable trust changes the outcome in Illinois is explained above; that answer is specific to this state and does not generalize to any other one.
- Every quotation here was read against the source on September 5, 2026. Nothing on this page is legal advice, and the exact dollar or percentage amount a court awards depends on facts this page cannot know.
Whether this statute reaches a given family’s actual facts is decided by a court, not by this page. Nothing here is legal advice, and no one should sign a waiver or forgo an election on the strength of a web page.
Sources
The sources above were retrieved and read against the state text on September 5, 2026. Every quotation on this page was checked against those bytes.