In re Estate of Scherr
2017 IL App (2d) 160889
| Ill. App. Ct. | 2017Background
- Decedent Marjorie Friedman Scherr died leaving a 1970 will that made no provision for her surviving spouse, George Scherr; her children (respondents) were sole legatees under that will.
- George filed for probate and was appointed as personal representative; on April 1, 2016 he filed a written renunciation of Marjorie’s will under 755 ILCS 5/2-8(b).
- George died May 23, 2016; respondents learned of the renunciation only after his death and filed an objection asserting lack of notice, public-policy grounds, and that the renunciation abated at George’s death.
- Petitioner (Lisa Scherr, trustee) produced an assignment from George of his post-renunciation interest in the estate and defended the renunciation as complete upon filing under section 2-8.
- The trial court sustained respondents’ objection, reasoning the renunciation required court approval and abated upon George’s near-immediate death; petitioner appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a spouse’s renunciation of a will under 755 ILCS 5/2-8 is complete upon filing | Filing the written renunciation in the probate court satisfies the statute and completes the election | Renunciation is for surviving-spouse benefit and requires more than filing (court approval or survival) and thus abates at spouse’s death | Filing completes renunciation; subsequent death of spouse does not undo it |
| Whether a renunciation-based action abates on the death of the renouncing spouse | The statute’s plain language makes filing the operative act, so no abatement | Actions created by statute abate on a party’s death absent statutory survival language | No abatement here because the renunciation was complete upon filing; abatement doctrine inapplicable |
| Whether George’s assignment to the trust was an improper assignment of a personal right to renounce | George assigned his interest acquired by the renunciation (post-election interest), not the personal right to renounce | Right to renounce is personal and unassignable, so trustee lacks standing | Assignment transferred George’s post-renunciation interest; trustee has standing to assert it |
| Whether prior dictum (In re Mondfrans) controls | Statute controls; dicta is nonbinding and the statute is unambiguous | Mondfrans language suggests renunciation abates at death | Mondfrans statement was obiter dictum and not controlling; statute governs |
Key Cases Cited
- Artuz v. Bennett, 531 U.S. 4 (2000) (defines “file” as delivery to and acceptance by court clerk for official record)
- In re Renunciation of Will of Sayre, 415 S.E.2d 263 (W. Va. 1992) (renunciation completed before death may be given effect despite subsequent death)
- Spencer v. Williams, 569 A.2d 1194 (D.C. 1990) (election to renounce filed while alive remains effective even if filer dies before receiving share)
- Cahill v. Eberly, 38 F.2d 539 (D.C. Cir. 1930) (distinguishes cases where statutory renunciation requirements were not complied with)
- Tunnell v. Edwardsville Intelligencer, Inc., 43 Ill. 2d 239 (1969) (cause does not abate where plaintiff dies after verdict but before entry of judgment)
- Shapiro v. Chernoff, 3 Ill. App. 3d 396 (1972) (statutory causes of action do not survive death unless statute so provides)
- Creighton v. County of Pope, 386 Ill. 468 (1944) (same principle regarding survival of statutory causes)
- Exelon Corp. v. Dep’t of Revenue, 234 Ill. 2d 266 (2009) (distinguishes obiter dictum from binding judicial decision)