In re Estate of Scherr
81 N.E.3d 131
| Ill. App. Ct. | 2017Background
- Decedent Marjorie Friedman Scherr died on September 5, 2015; her 1970 will (which left nothing to her surviving spouse George) was admitted to probate in January 2016.
- George, Marjorie’s surviving spouse, filed a written renunciation of the will in the probate court on April 1, 2016.
- George died on May 23, 2016; respondents (Marjorie’s children and will beneficiaries) were provided a copy of the renunciation after George’s death and filed an objection on June 23, 2016.
- Respondents argued (1) the renunciation abated at George’s death and (2) petitioner (the trust as assignee) lacked standing because the renunciation right was personal and unassignable.
- The trial court sustained the objection, reasoning the renunciation required court approval and that George’s death shortly after filing made it ineffective.
- The appellate court reversed and remanded, holding that under Illinois Probate Act section 2-8 the filing itself completes a renunciation and a surviving spouse’s subsequent death does not undo a validly filed renunciation; the trust validly held the interest assigned by George.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a renunciation of a will under 755 ILCS 5/2-8 require court approval beyond filing? | Filing the written instrument in court is the operative and complete act; no additional approval required. | Renunciation must be approved by the court; filing alone is not sufficient. | Filing alone completes the renunciation under section 2-8; no separate court approval is required. |
| Does a surviving spouse’s death after filing a renunciation undo or abate that renunciation? | Once validly filed, the renunciation is effective and is not undone by the spouse’s subsequent death. | The right to renounce is personal and abates on the spouse’s death; thus the renunciation is ineffective. | A timely and proper filing completes the renunciation and the spouse’s later death does not abate it. |
| Does a statutory cause or action relating to renunciation abate on death absent a survival provision? | Section 2-8 makes the filing dispositive; the question of abatement is inapplicable once renunciation is complete by filing. | Actions created by statute typically abate upon the party’s death unless statute provides otherwise. | Because renunciation was complete by filing, abatement doctrine did not undo it; statutory filing rule controls. |
| Was the assignment of George’s post-renunciation estate interest valid and did the assignee have standing to assert the renunciation? | George assigned his interest in the estate after renouncing; the trust therefore held the assigned interest and standing. | The renunciation right is personal and unassignable; petitioner lacked standing to enforce it. | George assigned his acquired interest (not the personal right to renounce); the assignment was valid and petitioner had standing to enforce the resulting estate interest. |
Key Cases Cited
- Artuz v. Bennett, 531 U.S. 4 (2000) (defines when a paper is considered "filed" for court purposes)
- Rock Island Bank & Trust Co. v. First National Bank of Rock Island, 26 Ill. 2d 47 (1962) (discusses the personal nature and policy considerations of spousal renunciation)
- In re Renunciation of Will of Sayre, 415 S.E.2d 263 (W. Va. 1992) (holds a renunciation effective if completed prior to renouncing spouse’s death)
- Spencer v. Williams, 569 A.2d 1194 (D.C. 1990) (applies renunciation completed before death despite the renouncing party later dying)
- Tunnell v. Edwardsville Intelligencer, Inc., 43 Ill. 2d 239 (1969) (illustrates that certain rights or results survive intervening events if the operative act was completed)