Detailed Answer
Under the Illinois Probate Act, a surviving spouse may claim a family allowance out of the deceased’s estate to cover living expenses during probate. Section 18-2 of the Probate Act (755 ILCS 5/18-2) establishes this right and sets limits on the amount and duration of the allowance. To qualify, the surviving spouse must prove the marital relationship.
Statutory Basis
- Family allowance: 755 ILCS 5/18-2 (link)
Proof of Marriage Requirement
Courts and personal representatives typically require an original or certified copy of the marriage certificate. This document establishes the legal marriage date and parties. Without it, the court may withhold the family allowance until marital status is verified.
Impact of an Incomplete or Missing Certificate
If the marriage certificate is incomplete (e.g., missing signatures or dates) or lost, the personal representative or court may:
- Delay processing the allowance claim
- Request additional evidence of marriage
- Challenge the surviving spouse’s eligibility
Absent satisfactory proof, the court may deny or reduce the allowance until marital status is confirmed.
Alternative Proof Methods
Illinois courts allow secondary evidence when a primary document is unavailable. Consider these options:
- Obtain a certified duplicate from the county clerk or registrar’s office
- Use church or officiant records confirming the ceremony
- Submit affidavits from the officiant, witnesses, or close relatives
- Provide joint documents showing cohabitation after the marriage date, such as joint tax returns, shared bank statements, or joint insurance policies
- File a petition asking the probate court to admit secondary evidence under its equitable powers
Helpful Hints
- Request a certified copy of your marriage certificate early from the county clerk’s office.
- Gather any church, officiant, or family records that document your marriage.
- Collect joint financial or property records dated after your wedding.
- Consult the personal representative about acceptable proof before filing your claim.
- If the claim is contested, file a motion with the probate court to admit secondary evidence.
Disclaimer: This article is for informational purposes and does not constitute legal advice.