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Probate and Divorce Hypothetical


Hector and his wife, Veronica, were married some years ago in Indonesia. Since that time Hector and Veronica have lived in the U.S. and Indonesia.

When Veronica’s uncle Edward died in 2003, he left his estate intestate in Cook County. The Circuit Court of Cook County declared Paul, Edward’s brother, the sole heir in April, 2003. Paul is Veronica’s father. The Circuit Court appointed Veronica the independent administrator in June, 2003, and in August, 2005, Edward’s estate was closed.

As independent administrator, Veronica claimed to be a resident of Cook County. Hector believes she was living in Indonesia at the time. Hector also believes Edward’s estate was undervalued.

Hector has divorce proceedings underway in Indonesia.


Statute of limitations in probate?

The Probate Act states that contests must be filed within 6 months of the admission of a will to probate (755 ILCS 5/8: Will Contests). It is unclear whether the 6-month limit also applies to intestate cases.

The Probate Act also states that “at any time or times during independent administration any interested person my petition the court for a hearing and order as to any matter germane to the administration of the state” (755 ILCS 5/28-5: Independent Administration of Decedents’ Estates).

Claims against estates are “barred 2 years after decedent’s death, whether or not letters of office are issued upon the estate of the decedent” (755 ILCS 5/18-12).

What is standing?

Standing is “a party’s right to make a legal claim or seek judicial enforcement of a duty or right” (Black’s Law Dictionary, 9th Ed.). Standing is the justification for why someone may ask the court to fix their problem. Usually, for someone to have standing, they must be directly impacted by the matter at hand.

Does Hector have standing in this case?

The simplest situation would be if Hector were an heir to Edward’s estate. Then he would definitely be considered an “interested person” and have standing in probate court (In re Estate of Levi E. Schlenker). But the most concrete statutory law – the Illinois Probate Act – does not consider Hector an heir (755 ILCS 5).

Since Edward was a resident of Illinois, the Illinois Probate Act applies (755 ILCS 5). Article 2 (“Descent and Distribution”) addresses “the intestate real and personal estate of a resident decedent.” In relevant part:

(d) If there is no surviving spouse or descendant but a parent, brother, sister, or descendant of a brother or sister of the decedent: the entire estate to the parents, brothers and sisters of the decedent in equal parts, allowing to the surviving parent if one is dead a double portion and to the descendants of a deceased brother or sister per stirpes the portion which the deceased brother or sister would have taken if living (755 ILCS 5/2-1).

The entire Probate Act never mentions spouses of heirs, indicating that the law does not consider spouses of heirs to have any sort of special legal status.

However, the Probate Act does mention “interested persons” (755 ILCS 5/28) and Hector could reasonably claim to be an interested person. The Illinois Supreme Court case In re Estate of Levi E. Schlenker addresses whether the plaintiff has standing in a situation where the executor of the estate claims she does not. In relevant part:

Under Illinois law, a plaintiff need not allege facts establishing standing. Chicago Teachers Union, Local 1 v. Board of Education of the City of Chicago, 189 Ill.2d at 206, 244 Ill.Dec. 26, 724 N.E.2d 914 Rather, it is the defendant’s burden to plead and prove lack of standing… Where standing is challenged in a motion to dismiss under section 2-619, a court must accept as true all well-pleaded facts in plaintiff’s complaint and all inferences that can reasonably be drawn in plaintiff’s favor.

The right to contest the validity of a will is purely statutory. It must be exercised by the person or persons, in the manner, and within the time prescribed by the Probate Act… Section 8-1 of the Probate Act of 1975 provides that a petition to contest the validity of a will may be filed by “any interested person.” An “interested person” is defined by the Probate Act as “one who has or represents a financial interest, property right or fiduciary status at the time of reference which may be affected by the action, power, or proceeding involved, including without limitation an heir, legatee, creditor, person entitled to a spouse’s or child’s award and the representative.” 755 ILCS 5/1-2.11.  (In re Estate of Levi E. Schlenker, Deceased (Imogene Rodgers, Appellee, v. Troy Schlenker, Ex’r et al;) 209 Ill.2d 456, 283 Ill. Dec. 707, 808 N.E.2d 995).

The opinion in Schlenker, then, supports Hector’s standing as an “interested person.” In fact, Justice Garman comments on the fact that the majority opinion in Schlenker makes the definition of “interested person” so broad:

The definition of ‘interested person’ is ambiguous… In general, a party has standing only if he suffers some injury in fact to a legally cognizable interest. It is an odd view of standing, to put it mildly, that lets a private person litigate just to right a wrong done entirely to someone else to just to make a point. The majority’s view of the Probate Act’s definition of ‘interested person’ reads this anomaly into the statute. (Justice Garman, specially concurring In re Estate of Levi E. Schlenker, Deceased.)

Hector may benefit from the anomalous definition in the statute, as long as he has a financial interest that may be affected by the proceeding. In Schlenker, the opinion states that the plaintiff has a financial interest in the case because if the case is handled incorrectly, there will be a “detrimental effect on her pecuniary interests.”  Hector may argue that if Veronica poorly executed her uncle’s estate, or particularly if she undervalued it, her poor financial management would have a detrimental effect on his pecuniary interests. Hector is an interested person because of the financial assets he shares with his wife.

Although Veronica’s portion of Edward’s estate is considered non-marital property, her behavior could still have a detrimental effect on Hector’s finances. “The value of a spouse’s nonmarital property must be considered in determining any maintenance award (Bentley v. Bentley 1981)” (In re Marriage of Carl Durante and Maureen Durante, 201 Ill. App.3d 376 (1990) 559 N.E.2d 56).  If Veronica undervalued Edward’s estate, her nonmarital property is less than what it ought to be, and Hector may be required to provide more maintenance than is necessary.

The Illinois statute on maintenance is as follows:

(a) In a proceeding for dissolution of marriage or legal separation or declaration of invalidity of marriage, or a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a temporary or permanent maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, in gross or for fixed or indefinite periods of time, and the maintenance may be paid from the income or property of the other spouse after consideration of all relevant factors, including:

  1. the income and property of each party, including marital property apportioned and non‑marital property assigned to the party seeking maintenance;
  2. the needs of each party;
  3. the present and future earning capacity of each party;
  4. any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;
  5. the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment;
  6. the standard of living established during the marriage;
  7. the duration of the marriage;
  8. the age and the physical and emotional condition of both parties;
  9. the tax consequences of the property division upon the respective economic circumstances of the parties;
  10. contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;
  11. any valid agreement of the parties; and
  12. any other factor that the court expressly finds to be just and equitable.

(750 ILCS 5/504).

Does Michelle have standing?

Like Hector, Michelle is also the spouse of an heir, but not an heir herself. She may have standing as an “interested person” for the same reasons as Hector.