The Journal of The DuPage County Bar Association

Back Issues > Vol. 22 (2009-10)

Illinois Doesn’t Care About Caregivers the Custodial Claims Statute of the Probate Act

By Mariam Hafezi Qualman

Imagine if you, a widow, had a sister, suffering from Parkinson’s Disease, and you moved into an apartment across the hall from her in her small town in Illinois where she lived so that you could help her bathe, dress, and prepare food for four years as she steadily worsened from the disease.1 Or, imagine you are a priest that had to take a leave of absence from your work in order to live with your mother who suffered from increasing health problems for approximately two and a half years, but before making the decision to move in with your mother as her health declined, you visited her two to three times per week performing caretaking duties for her for several years prior to living with her.2

One would hope that, in either of these instances, the statutory custodial claims statute, whose purpose is "to allow immediate family members to recover the additional opportunity and emotional costs of committing their lives to disabled relatives,"3 would be applicable to either of these narratives. In actuality, the above accounts are true stories in which the respective caretakers filed a claim under section 18-1.1 of the Illinois Probate Act,4 but were unsuccessful because they did not qualify as caregivers based on the statute’s strict requirements.5 These sad but true accounts raise questions as to whether the statute is truly accomplishing its intended purpose. Aside from these types of unsuccessful, but worthy, claims, there are few filed in the first place, likely due to the strict requirements and the courts’ strict interpretation, as evidenced by an empirical study conducted on December 15, 2008 in DeKalb, Illinois by the author of this article for the purpose of determining how common statutory custodial claims were. Of nearly 300 decedent estates filed in DeKalb County in the years 2006, 2007, and 2008, there were zero section 18-1.1 claims made.6 Though the study was done in a small county, the results still indicate the virtual ineffectiveness of section 18-1.1 as it is currently written.

In this article, the author will give a short background of the statute, discuss the problem with its limited claimant pool, the problems with the dedication and live-in requirements, and, finally, the author’s recommendations for statutory changes.

Section 18-1.1 of the Illinois Probate Act currently states as follows:

Any spouse, parent, brother, sister, or child of a disabled person who dedicates himself or herself to the care of the disabled person by living with and personally caring for the disabled person for at least three years shall be entitled to a claim against the estate upon the death of the disabled person. The claim shall take into consideration the claimant’s lost employment opportunities, lost lifestyle opportunities, and emotional distress experienced as a result of personally caring for the disabled person. Notwithstanding the statutory claim amounts stated in this Section, a court may reduce an amount to the extent that the living arrangements were intended to and did in fact also provide a physical or financial benefit to the claimant. The factors a court may consider in determining whether to reduce a statutory custodial claim amount may include but are not limited to: (i) the free or low cost of housing provided to the claimant; (ii) the alleviation of the need for the claimant to be employed full time; (iii) any financial benefit provided to the claimant; (iv) the personal care received by the claimant from the decedent or others; and (v) the proximity of care provided by the claimant to the decedent to the time of the decedent’s death. The claim shall be in addition to any other claim, including without limitation a reasonable claim for nursing and other care. The claim shall be based upon the nature and the extent of the person’s disability and, at the minimum but subject to the extent of the assets available, shall be in the amounts set forth below:

1. 100% disability, $180,000

2. 75% disability, $135,000

3. 50% disability, $90,000 4. 25% disability, $45,000. 7

House Bill 4116 was amended in the Senate to include the section 18-1.1 language in section 4 of the bill.8 The bill eventually passed in both the Illinois House and Senate in June of 1988 and was sent to Governor James R. Thompson in July of 1988. On September 2, 1988, Governor Thompson wrote an amendatory veto message to the House about section 4 of the bill which included concerns about the potential for complex probate litigation and sick family members ending up as pawns, and stated that if section 4 remained unchanged, he would veto the bill.9

In response to this amendatory veto message from the Governor, the House, on November 16, 1988, overrode the veto in a 107–6 vote with no debate about the Governor’s concerns.10 On December 1, 1988, the bill and veto message went to the Illinois Senate and, for the first time, the changes to be made to the Probate Act were debated on the floor.11 According to Senator Poshard, the Senate sponsor of the bill, the "narrow problem" this language was trying to address was actually the issue of equitable distribution to a parent who cares, perhaps more than the other parent, for a disabled child, for many years.12 Senator Welch13 argued that there was great concern about this statute by the bar associations and probate judges because of the many logistical issues it creates for a judge, including determining what parent gets a greater share or how much should a parent get over a caregiving sibling.14 Senator Berman15 raised the concern that the language did not require any proof as to the quality or quantity of care given to the disabled person and also stated that "the presiding judge of the probate division of Cook County [is] strongly, and that’s a soft word, strongly opposed to this bill."16 Despite these concerns, which coincided with some of the governor’s concerns, the veto was overridden 49–8.17 On January 1, 1989, House Bill 4116 became Public Act 85-1417.18 Since that time, there have been only two changes to section 18-1.119

In 2002, the Illinois Supreme Court, in the case of Estate of Jolliff, fully addressed the constitutionality of section 18-1.1 based on arguments that the statute violated substantive due process of law, equal protection, the special legislation provision, and the separation of powers provision of the Illinois Constitution.20 The court held that even though the statute was not a "model of clarity in legislative drafting," it should be upheld on all grounds.21

As indicated in the 2003 National Alliance for Caregiving and AARP National Caregiver Survey, there are an estimated "44.4 million American caregivers (21% of the adult population) age 18 and older who provide unpaid care to an adult age 18 or older. These caregivers are present in an estimated 22.9 million households (21% of U.S. households)." 22 According to the Illinois Department on Aging, "one in four households (25%) [take] on the role of providing care to older family members and friends." 23 Additionally, "[e]ighty-five percent (85%) of all long term care services are provided by unpaid caregivers. If the work of these family caregivers had to be replaced by paid home care staff, the estimated cost would be $45 to $94 billion per year."24 In Illinois alone, the economic value of family caregivers is over seventeen billion dollars.25 That is a staggering number considering that the caregivers must, for the most part, pay for the costs of caregiving out of their own pockets.26 It is unlikely that the need for family caretakers will subside in the coming years due to a multitude of factors discussed in a report and presentation by the Family Caregiver Alliance in 2007.27 These factors include an aging Baby Boomer generation, the many medical advancements allowing for longer lives of elderly and/or disabled persons, and the continuously rising costs of long-term healthcare with very few workable solutions in sight. 28 Even worse, because of these factors, there is an indication that there will be a shortage of professional caretakers in the future,29 thereby forcing family members to take on the financial, physical, and emotional responsibilities of taking care of their elderly or disabled relative. All of these issues make the need for a statutory custodial claim a necessary part of the solution for family caregivers.

According to the language of the statute, the only people eligible to file a statutory custodial claim are spouses, parents, siblings, and children, excluding grandparents, grandchildren, aunts, uncles, cousins, and other blood relatives.30 At the time section 18-1.1 was passed, there was no reason set forth for selecting the above-described class of people as eligible claimants.31 In fact, the original statute left out children as part of the eligible class, which changed only as of 1992.32 In the Jolliff case, the Illinois Supreme Court justified the limited class because it "serves the legislative goal of encouraging immediate family members to commit themselves to disabled relatives."33

Though the Illinois General Assembly limited the caregiver class to spouses, parents, siblings, and children, statistics show that caregivers include many other relatives not listed in the statute. Though for white families, the majority of the caregivers are between the ages of thirty-five and sixty-four and are likely spouses taking care of their sick or disabled spouse,34 in African-American and Hispanic households, the caregivers are more likely to be between the ages of eighteen and forty-nine, and to be taking care of their elderly parents or grandparents.35 The family dynamics and cultural ideals of the many sub-groups within American culture show that there exist many variations of the typical family and the typical family caregiver. For example, in many Hispanic families, several degrees of relatives often live together under one roof or live within very close proximity to one another and it is normal for various family members, including cousins and grandchildren, to take care of younger children or elder members of the family.36 In many Asian cultures, it is considered the norm to care for their elderly relatives.37 In Indian cultures, it is customary for the eldest child to take on the responsibility of caring for an ill parent and moving the parent into his or her home.38 For many black families, it is common to take on the responsibility of caring for immediate or extended family members.39

To solve this problem of limited claimants and since Illinois is such a heterogeneous mix of the above-described ethnic groups that have deep-seeded cultural values, the legislature should allow all blood relatives the opportunity to make a custodial claim and then let the fact-finder determine who best deserves what amount from the claim. Moreover, the eligible class will remain limited enough as it will still exclude friends or neighbors, as well as in-laws and step-relatives, from making a claim since, as it is well-established in the Illinois Probate Code, these extended family members are excluded for all purposes relating to estates and their claims.40 Though it may be argued that in-laws or even close friends should be allowed to make statutory custodial claims based on the significant amount of care given by them,41 in the interest of judicial economy and limiting the drain on estates, it would be fair to draw the line at blood relatives. Furthermore, non-blood relatives or friends always have the option of filing a contract claim42 – an option that rarely works for blood relatives because care given to a family member by another family member is simply considered gratuitous and no implied contract is likely to be found.43

The dedication requirement of section 18-1.1 also renders the custodial claims statute rarely applicable because it requires that the caretaker care for the disabled person for at least three years and the three years must involve cohabitating with the disabled person.44 This live-in requirement has been strictly construed by the Illinois courts, as illustrated in the two cases described in the introduction.45 In the Hoehn case, for instance, living across the hall from her sister – a mere eight feet away – was not sufficient to satisfy the living requirement of the statute and the caretaker sister was unable to succeed on her claim.46 How can such a result be reconciled when there are houses that cover more square footage than these two sisters’ neighboring apartments? Similarly, in Riordan, by strictly construing the statute, the son’s claim failed because the son lived with his mother for only two and a half years before she passed away.47 The court gave no credence to the son’s argument that he would have continued to care for his mother for as long as necessary but she happened to die before the three-year mark came, nor did the court give any credit to the son for taking care of his mother for a few years prior to moving in to take care of her. 48 These exclusions, due to the strict dedication requirements, undermine the statute’s purpose of encouraging families to take care of their own.49

To increase the ability of family members to make a claim, the legislature should reduce the dedication requirement. In an ideal world, there would be no minimum caregiving time requirement, but that is simply unrealistic for public policy reasons including judicial economy in the processing of probate estates, the prevention of fraudulent claims, and the shuffling around of the sick and/or elderly relative. Considering these factors, one year is a more reasonable minimum dedication requirement because, this way, the majority of caregivers will be compensated for their services.50

As for the live-in requirement, this should be adjusted to allow claims by family caregivers who live in close proximity to their ill or disabled relative. According to a 2003 survey by the National Alliance for Caregiving/AARP, eighty-five percent of caregivers who do not live with the disabled and/or elderly family member, live within one hour from them. 51 Though one hour is difficult to describe due to variations in traffic, urban versus rural driving, etc., it sets a general guideline and a caregiver would not realistically be able to live much farther than one hour away and provide frequent, high-level care to their family member. Whether a caregiver rises to the level of care intended by the custodial claims statute shall be determined by the courts on a case-by-case basis. This statutory change would allow for a greater number of caregivers to fall within the purview of the dedication requirement.

A tangential, but crucial issue regarding section 18-1.1 claims is the a failure of otherwise valid custodial claims due to the evidentiary rule, the Dead Man’s Act, as shown in the case of Estate of Rollins.52 The continued application of the Dead Man’s Act in Section 18-1.1 cases is unduly oppressive and takes away any semblance of opportunity for family members to make a valid custodial claim, despite sacrificing and caring for an ill or disabled family member. Thus, in addition to revising the language of section 18-1.1 to be more inclusive, the legislature must address the issue of the Dead Man’s Act and other rules of evidence to determine whether they should be applied, or if exceptions should be made.

To reiterate, the need for a viable custodial claim statute is real because the costs of long-term care are increasing and people are living longer, even with disabilities and illnesses, due to the continuing advancements in medicine and technology.53 Though there has been a great effort by the federal government, state governments, and private institutions to provide support systems and aid to family caregivers, none of these address the need for monetary compensation. 54 Not only is being a caregiver physically demanding, but seeing a family member ill or disabled is emotionally draining, especially when rendering care for long periods of time. 55 In addition to these physical and emotional hardships, there is a great financial burden as being a caregiver can affect one’s job, as well as increase monthly expenditures. 56 Thus, it must be acknowledged that section 18-1.1 is needed to help provide relief to those who undertake the difficult task of caring for an ill or disabled family member. The legislature must redraft section 18-1.1 so that it effectively serves the family caregivers. To do so, a revised section 18-1.1 should include a clearly articulated purpose; a broadening of the eligible claimant class; a reduction of the dedication requirement; a change to the cohabitation requirements; an expansion of the language to include ill persons as well as disabled persons; compensation for money spent during caregiving, as well as compensation for the value of caregiving services rendered; removal of the ability to use the Dead Man’s Act; and removal of the predetermined claim amounts.

1 In re Estate of Hoehn, 234 Ill. App. 3d 627; 600 N.E.2d 899 (3rd Dist. 1992).

2 In re Estate of Riordan, 814 Ill. App. 3d 594; 814 N.E.2d 597 (1st Dist. 1995).

3 In re Estate of Jolliff, 199 Ill.2d 510, 518; 771 N.E.2d 346, 351 (Ill. 2002).

4 755 Ill. Comp. Stat. Ann. 5/18-1.1 (West 2008).

5 In re Estate of Hoehn, 234 Ill. App. 3d 627, 630; 600 N.E.2d 899, 901 (3rd Dist. 1992) ; In re Estate of Riordan, 814 Ill. App. 3d594, 601; 814 N.E.2d 597, 599 (1st Dist. 1995)

6 In 2006, there were 60 decedents’ estates; in 2007, there were 97 decedents’ estates; in 2008, there were 96 decedents’ estates. Guardian estates were not considered as part of this study.

7 755 Ill. Comp. Stat. Ann. 5/18-1.1 (West 2008) (emphasis added).

8 H.B. 4116, 85th Gen. Assem., Reg. Sess. (Ill. 1988). Section 4 added provisions to the Probate Act that included conditional gifts and custodial claims. Id.

9 1988 Ill. Senate J. 5896-97; 1988 Ill. House J. 7524-25.

10 Transcript of Debate. H.B. 4116, 85th Gen. Assem., Reg. Sess.,

Nov. 16, 1988,

11 Transcript of Debate. H.B. 4116, 85th Gen. Assem., Reg. Sess., Dec. 1, 1988, .

12 Transcript of Debate. H.B. 4116, 85th Gen. Assem., Reg. Sess., Dec. 1, 1988, available at

13 Illinois General Assembly,

14 Transcript of Debate. H.B. 4116, 85th Gen. Assem., Reg. Sess., Dec. 1, 1988, available at

15 Illinois State Bar Association, Id.

16 Transcript of Debate. H.B. 4116, 85th Gen. Assem., Reg. Sess., Dec. 1, 1988, available at

17 Id.

18 1988 Ill. Senate J. 5896-97; 1988 Ill. House J. 7524-25.

19 1992 Ill. Laws 1753. The Illinois Senate added "child" to the group of persons allowed to make a custodial claim if they were a caregiver. Id. 2007 Ill. Laws 2952. On January 1, 2008, the predetermined minimum amounts that can be claimed by a caregiver were increased. Id.

20 In re Estate of Jolliff, 199 Ill.2d 510; 771 N.E.2d 346 (Ill. 2002).

21 Id. at 526; 355.

22 National Alliance for Caregiving and AARP, Caregiving in the U.S. (2003), Id.

23 Illinois Department on Aging, (last visited Jan. 4, 2009).

24 Id.

25 Id.

26 Evercare, Family Caregivers – What They Spend, What They Sacrifice: The Personal Financial Toll of Caring for a Loved One (2007),

27 Family Caregiver Alliance, Family Caregiving: State of the Art, Future Trends (2007),

28 Id.

29 Caregiver Shortage Expected To Worsen As Aging Baby Boomers Increase Demand, Medical News Today, (2006),

30 755 Ill. Comp. Stat. Ann. 5/18-1.1 (West 2008).

31 Transcript of Debate. H.B. 4116, 85th Gen. Assem., Reg. Sess., Nov. 16, 1988,

32 1992 Ill. Laws 1753.

33 In re Estate of Jolliff, 199 Ill. 2d 510, 524; 771 N.E.2d 346, 354 (Ill. 2002).

34 National Alliance for Caregiving and AARP, Caregiving in the U.S. (2003),

35 Id.

36 Mary Ballesteros-Coronel, Taking Care of the Elderly, AARP Segunda Juventud, 2002, available at

37 Tanya Bricking, Taking Care of Elders Part of Culture for Many, Honolulu Advertiser, Feb. 28, 2005, available at

38 Amelia Gentleman, Letter From India: India Moving to Protect Parents, Int’l Herald Trib., March 1, 2007, available at

39 Robin J. Miller, Suzanne M. Randolph, Carole Kaufman, Valerie W. Dargan & David H. Banks, Non-Family Caregivers of the African American Elderly: Research Needs and Issues, Afr.-Am. Res. Persp., Spring/Summer 2000, at 69, 72.

40 755 Ill. Comp. Stat. Ann. 5/2-1 (West 2008).

41 National Alliance for Caregiving and AARP, Caregiving in the U.S. (2003), .

42 See In re Estate of Milborn, 122 Ill. App. 3d 688; 461 N.E.2d 1075 (3rd Dist. 1984).

43 Id. at 692; 1079

44 755 Ill. Comp. Stat. Ann. 5/18-1.1 (West 2008).

45 See supra text accompanying note 6.

46 See In re Estate of Hoehn, 234 Ill. App. 3d 627; 600 N.E.2d 899 (3rd Dist. 1992).

47 See In re Estate of Riordan, 814 Ill. App. 3d 594; 814 N.E.2d 597 (1st Dist. 1995).

48 Id.

49 In re Estate of Jolliff, 199 Ill. 2d 510, 516; 771 N.E.2d 346, 350 (Ill. 2002).

50 National Alliance for Caregiving and AARP, Caregiving in the U.S. (2003),

51 National Alliance for Caregiving and AARP, Caregiving in the U.S. (2003), .

52 In re Estate of Rollins, 645 N.E.2d 1026 (Ill. App. Ct. 1995)

53 See supra text accompanying notes 31-32.

54 See National Family Caregiver Support Program,; See Illinois Department on Aging,; See National Alliance for Caregiving,; AARP,

55 National Alliance for Caregiving and AARP, Caregiving in the U.S. (2003),

56 National Alliance for Caregiving and AARP, Caregiving in the U.S. (2003),

Mariam Hafezi Qualman, a 2005 graduate of the University of Iowa, is currently a third-year law student at the Northern Illinois University College of Law and is a J.D. candidate for May 2010

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