December 1, 2022
By: Richard Lee Stavins
Most people who go through a divorce come out of it exhausted. Often the last recommendation from a competent divorce attorney to his client is: “Now, change the beneficiary of your will, your trust and your life insurance to someone other than the spouse you just divorced.” Good advice, but often not heeded.
Long ago, the legislature decided that following a divorce most people would not want their ex-spouse to inherit their estate. As a result, we have had statutes in Illinois since 1957 that say that any bequest in a trust or will to a divorced spouse is automatically revoked by the divorce if the will or trust was signed before the divorce judgment was signed by the judge. 755 ILCS 5/4-7(a); 760 ILCS 35/1.
Many states, but not Illinois, also had a statute that said if a spouse was designated as a beneficiary of a life insurance policy before the divorce, that designation was automatically revoked by the divorce. In states like Illinois without such a law, this sometimes created an unintended windfall for the ex-spouse. The second wife — there’s always a second wife in these cases — yelled like the dickens when she didn’t get the life insurance money, but frequently she could do nothing about it.
The gap in the law has now been filled in. Effective January 1, 2019, in Illinois, a designation in a life insurance policy to a divorced spouse, made before the divorce became final, is revoked by the divorce. 750 ILCS 5/503(b-5)(2). The new law did not say whether it applied to the thousands of divorces in the past that might be in this situation, or whether it applies only to divorces beginning in 2019. However, Robbins DiMonte won a case in the Appellate Court of Illinois in 2022, holding that the law does not apply to prior divorces.
One thing the new law does not change is that if the divorce decree requires one spouse to maintain insurance on his life, which is fairly common, and the ex-spouse is the beneficiary, the divorce will not void that life insurance designation.