Home / Life Cycle of Families / Guides / Marriage and your estate plan
Illinois guide
Married or moving in together? What to update in your estate plan
Getting married does not cancel an Illinois will, and it does not update your beneficiary forms. Illinois law gives a spouse rights that an unmarried partner does not have, including inheriting without a will and a place near the top of the medical decision-maker list. Start with beneficiary forms, then your will and powers of attorney.
What the law assumes for a spouse, and for a partner
Illinois law gives a spouse a set of rights automatically. An unmarried partner gets none of them unless you create them on paper. Living together does not close the gap, however many years it lasts.
Common law marriage is not valid in Illinois. Couples who live together for years are still treated as unmarried. 750 ILCS 5/214
A civil union is different. Partners in a civil union have the same legal obligations, protections, and benefits as spouses. 750 ILCS 75/20
| Spouse (or civil union partner) | Unmarried partner | |
|---|---|---|
| If you die with no will | Inherits everything if you have no children or other descendants, and half if you do. 755 ILCS 5/2-1 | Is not an heir. Your property goes to your children, then your parents and siblings, then more distant relatives. 755 ILCS 5/2-1 |
| If you cannot decide about medical care, and named no one | Near the top of Illinois’s default list of decision-makers. | May qualify only as a “close friend,” at the bottom of the list, and only by giving the doctor a sworn statement. 755 ILCS 40/10, 40/25 |
| If your will leaves them little or nothing | Can renounce the will and take one-third of the estate if you leave children or other descendants, or one-half if you do not. The deadline is 7 months after the will is admitted to probate. 755 ILCS 5/2-8 | Receives only what the will gives. There is no right to renounce. |
| Owning a home together | Can hold it as tenants by the entirety, if the deed says so. The survivor keeps the whole home. After a divorce it becomes a tenancy in common. 765 ILCS 1005/1c | Holds it as joint tenants or tenants in common. A deed that tries to create a tenancy by the entirety between unmarried people is treated as a joint tenancy. 765 ILCS 1005/1c |
Who decides your medical care if you cannot?
This is the question couples overlook most. If you have signed a health care power of attorney, the person you named decides. If you have not, Illinois falls back on an order set by law for major decisions, such as whether to stop life-sustaining treatment. Here it is, in order.
- 0The agent you named
Only a signed health care power of attorney puts this person first. It is the one step you control.
- 1A court-appointed guardian of the person
If a court has appointed one.
- 2Your spouse
Civil union partners have the same rights.
- 3An adult son or daughter
- 4Either parent
- 5An adult brother or sister
- 6An adult grandchild
- 7A close friend
This is where an unmarried partner lands, and only after giving the doctor an affidavit that shows they know you and your wishes well. 755 ILCS 40/10, 40/25
Simplified from the Illinois Health Care Surrogate Act. The list continues with a few less common roles.
Paperwork beats the will for many accounts
Retirement accounts and life insurance go to whoever is named on the form, not to whoever your will names. That is why beneficiary forms come first after a wedding or a move-in.
Seven things to review
Tick each one as you review it. This is a conversation starter, not advice, and nothing you tick is saved or sent anywhere.
These pass property to the person named on the form, whatever your will says. After a marriage or a move-in they are the documents most often left out of date. Many employer retirement plans, including most 401(k)s, also require your spouse’s written consent before you can name someone else. IRAs generally do not. Plan rules vary, so check the plan.
An Illinois will is not cancelled by marriage. An older will keeps working as written, and it may name people you no longer want and say nothing about your spouse. A surviving spouse can renounce a will and take a share set by law, so a plan that ignores a spouse can be undone. 755 ILCS 5/4-7, 5/2-8
It names the person who decides when you cannot. Without one, the default order in the picture above applies, and an unmarried partner ranks near the bottom. Naming your partner puts them first. 755 ILCS 40/25
It names who can pay bills and manage accounts if you cannot. A spouse or partner cannot automatically manage accounts that are only in your name.
Title decides who receives the property and whether it goes through probate. Married couples and civil union partners can hold a home as tenants by the entirety, but only if the deed says so. Unmarried co-owners cannot. Joint title also has tradeoffs, so talk it through before you retitle anything. 765 ILCS 1005/1c
A written agreement, signed by both of you, can set how property is treated and what happens at death or divorce. It has to be made before the marriage. See the section below. 750 ILCS 10/3
A parent can name a guardian for a minor child in a will or other writing. If you have children from an earlier relationship, the other parent may have a say too, so this is worth discussing. 755 ILCS 5/11-5
Thinking about a premarital agreement?
A premarital agreement is a contract between two people who are about to marry. It takes effect when they marry, so it has to be made first. It must be in writing and signed by both of you. 750 ILCS 10/2, 10/3
Illinois lets a couple cover several things in one, including:
- who owns and controls property, including property each person brings to the marriage;
- what happens to property at separation, divorce, or death;
- changing or giving up spousal support;
- a will or trust that carries out the agreement; and
- who receives life insurance proceeds.
It cannot reduce a child’s right to support. 750 ILCS 10/4 Not every couple needs one, but the decision is worth making on purpose. Unmarried couples are not covered by this law, so an agreement between them about shared property is worth discussing with an attorney.
Where to go from here
- Prefer paper? Download the one-page checklist (PDF).
- See what the default rules do without a will in What happens if you die without a will in Illinois.
- Wondering whether a trust makes sense for your household? Read Do I need a trust in Illinois?
- See the Marriage or Partnership page for the documents worth reviewing first.
- Compare the plans and fees, including the Foundation Plan.
Sources. Illinois law: 755 ILCS 5/2-1 (who inherits with no will), 5/2-8 (a spouse’s renunciation of a will), 5/4-7 (marriage and wills), 5/11-5 (guardian for a minor), 755 ILCS 40/10 and 40/25 (health care decision-makers), 750 ILCS 5/214 (common law marriage), 750 ILCS 75/20 (civil unions), 750 ILCS 10/3 and 10/4 (premarital agreements), 765 ILCS 1005/1c (tenancy by the entirety). Statute text checked October 2026. Retirement plan rules come from federal law and each plan’s own terms, so check the plan itself.
Common questions
Does getting married cancel my Illinois will?
No. Marriage does not revoke a will. An older will keeps working as written, even if it names someone you no longer want or does not mention your new spouse. Divorce is different: it cancels gifts and appointments to a former spouse in a will signed before the divorce. 755 ILCS 5/4-7
Is my partner my heir if we have lived together for years?
No. Illinois does not recognize common law marriage, so your partner has no right to inherit unless you leave property to them in a will or trust, or by a beneficiary form or joint title. A civil union is different, because civil union partners have the same rights as spouses. 750 ILCS 5/214, 75/20
Can my spouse claim more than my will leaves them?
Yes. A surviving spouse can renounce the will and take one-third of the estate if you leave children or other descendants, or one-half if you do not. The spouse must file a written renunciation within 7 months after the will is admitted to probate, unless the court allows more time. 755 ILCS 5/2-8
Who makes medical decisions for me if I cannot and have no document?
Illinois sets an order for major decisions: a court-appointed guardian, then your spouse, adult children, parents, siblings, and adult grandchildren, and then a close friend. A partner who is not a spouse can qualify only as a close friend, by giving the doctor an affidavit. A health care power of attorney avoids the question by naming your choice directly. 755 ILCS 40/25
Do we need a premarital agreement?
Not every couple does. It makes the most sense when one person brings significant assets, a business, children from an earlier relationship, or expects an inheritance. It must be in writing and signed by both people before the marriage, and it cannot reduce a child’s right to support. Each person is usually better served by having their own lawyer. 750 ILCS 10/3, 10/4
Should we put each other on the deed to our home?
It depends. Married couples can hold a home as tenants by the entirety, so the survivor keeps the whole property, but the deed has to say so. Joint ownership also has tradeoffs, including losing sole control and exposing your share to the other owner’s situation. Talk it through before you retitle. 765 ILCS 1005/1c
Newly married, or about to move in together?
A consultation is the place to talk through your household, what the default rules would do, and which documents to update first. Nothing is finalized until we have talked.
This page is general information about Illinois law and is not legal advice. It does not create an attorney-client relationship. Your situation may differ, and laws change. See the Disclaimer. Last updated October 2026.