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Avoid a Former Spouse Becoming Legal Guardian of Minor Children After a Divorce: Predeceased Testator Survived by Ex-Spouse
If a spouse dies without a Will, the decedent’s wife and children, may divide the intestate estate of the predeceasing spouse. If the children are minors at the time of the predeceasing spouse’s death, usually the surviving ex-spouse could become the legal guardian of the minor children. However, if the testator made a revocable living trust before death, the testator could direct who would be the successor trustee, presuming not the surviving ex-spouse, and the testator could direct as to what happens to his or her property upon death.
Spouses can file for a no-fault divorce in Illinois, as long as they have lived separate and apart for at least two years and state that irreconcilable differences ended their marriage. This two-year separation period may be waived "upon written stipulation of both spouses, filed with the court."
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