How Do I Vacate a Divorce After Death in Illinois?

To vacate a divorce after your former spouse has died is a crapshoot, according to Evanston, Ill., attorney Jonathan Shimberg. No overriding law applies in all cases. The courts have wide latitude to rule, and much depends on the circumstances under which the divorce was granted, how and when the deceased's will or estate was written or created, the claims of heirs and how soon after the death you file a motion to vacate the divorce.

• 1

  File a motion to vacate the divorce in the same domestic court in which the divorce was granted. If it's within 30 days of the divorce, the court is more likely to view the motion favorably, especially if duress, infidelity or fraud played a substantial role in the divorce.

• 2

  Notify the heirs of the deceased. Children, siblings, parents, grandparents and others named in the will of the deceased, or who had standing with the deceased as determined by his will or estate, must be notified of your action to vacate the divorce. Because vacation of the divorce is the legal equivalent of again being married, material issues must be addressed. These include distribution of pensions, annuities and retirement savings plans.

• 3

  Argue your case in court. Once the motion to vacate has been filed, a legal rationale must be submitted for the court to consider. The court will read the legal arguments and allow oral argument in court. The heirs will have the opportunity to respond to your motion and dispute your action to vacate if they choose. The court will hear their written and oral arguments.

• 4

  Wait for the judge to determine the outcome of the motion to vacate. The judge decides whether grounds exist to vacate the divorce. Illinois laws that pertain are manifold and conflicting. If, for example, fraud was involved when the divorce was granted (such as hiding assets that should have been distributed), this may be sufficient grounds for the judge to vacate the divorce.

• 5

  Present to the probate court the judge's order to vacate the divorce. The probate division of the court has a duty to carry out the judge's order. The probate court will name you as the administrator of the deceased spouse's estate.