The question of whether a spouse can disinherit another spouse is not an easy question as the law may be changing. The seminal case on the issue is Johnson v. LaGrange State Bank, 73 Ill.2d 342, wherein the court held that assets passing outside of a Last Will by deceased husband could not be obtained by wife. The wife’s attorney argued that the deceased husband had defrauded her. The Illinois Supreme Court found that where an actual transfer is made via joint ownership with someone other than the wife, that transaction cannot be set aside. Wife was thus effectively disinherited.
However, in 2006, an Illinois appellate court called in question the Johnson case wherein the asserts, “ We note that Johnson v. La Grange State Bank, 73 Ill.2d 342, 22 Ill.Dec. 709, 383 N.E.2d 185 (1978), appears to hold that the presumption of a valid gift created by a joint account agreement survives despite proof that the gift involved conditions not listed in the agreement. Although the decedent in Johnson required the defendant in that case to use two nominally joint bank accounts for the decedent's benefit while she was alive, the court held that the account agreements “by their very terms indicated the existence of a valid [inter vivos ] gift.” Johnson, 73 Ill.2d at 368, 22 Ill.Dec. 709, 383 N.E.2d 185. However, while Illinois courts have frequently followed Murgic, citing at least 29 times the language that the presumption is that an account agreement speaks the whole truth, no case has followed the relevant holding in Johnson.” See In Re Estate of Shea, 364 Ill.App.3d 963.
The Supreme Court appeared to indirectly chip away at the Johnson case when it found in favor a creditor (in this case a hospital) was “defrauded” by a decedent. See Rush University v. Sessions, 212 IL 112906 (2012). Under this new case, if a spouse were to intentionally defraud a spouse of her marital share using a trust.
What's the bottom line? How does a spouse protect themselves? The answer is: make sure your name is on title, the deed and on all bank accounts. Do not rely on solely being named a beneficiary because that can change at any time.