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Many people who have separated from their spouse assume that if they die, their estate will pass to their children or other loved ones — not to their estranged spouse. This is a dangerous assumption. Under the intestacy rules of England and Wales, a separated spouse retains full inheritance rights until the divorce is legally finalised. Informal separation, however long, counts for nothing. A formal judicial separation order is the one exception, and it is set out below. Northern Ireland works the same way on separation but uses its own figures, and Scotland has its own rules of prior and legal rights.
The intestacy rules under the Administration of Estates Act 1925 recognise only legal marital status, not the practical reality of a relationship. If the marriage has not been legally dissolved by a decree absolute (now called a ‘final order’ under the Divorce, Dissolution and Separation Act 2020), the spouse is still a legal spouse for the purposes of intestacy.
This means that a separated spouse is entitled to:
The duration of an informal separation is irrelevant. A couple who separated 30 years ago but never divorced would still produce this outcome.
There is one formal step short of divorce that does change the intestacy position. Under section 18(2) of the Matrimonial Causes Act 1973, while a judicial separation order (or the older decree of judicial separation) is in force and the separation is continuing, the estate of a spouse who dies intestate devolves as if the other party to the marriage had then been dead. There is an equivalent provision for civil partners. This is a court order applied for through the family court, not the same thing as a separation agreement, a deed of separation, or simply living apart — none of which have this effect.
For the full intestacy overview, see our main intestacy guide.
In a married-with-children scenario, the separated spouse would receive the statutory legacy of £322,000 from the estate, plus all personal chattels, plus half of anything remaining above that threshold. The children share only the other half of the remainder.
This can result in a situation where an estranged spouse — perhaps living with a new partner, perhaps having had no contact with the deceased for years — receives a substantial sum from the estate, while the deceased's children and new partner receive far less or nothing.
For the full mechanics of this formula, see our guide on dying without a will married with children.
If the family home was held as joint tenants, it passes to the surviving joint tenant by right of survivorship — regardless of separation. This means the separated spouse would receive the property if the deceased was their joint tenant.
If the property was held as tenants in common, the deceased's share forms part of the estate and passes under intestacy — again, potentially to the separated spouse.
A joint tenancy can be severed, which converts the ownership to a tenancy in common and stops the share passing automatically to the other owner. Under section 36(2) of the Law of Property Act 1925 this can be done unilaterally, without the other joint tenant's consent, by serving a written notice of severance on them. It takes effect from service, and the severance can be noted on the title at HM Land Registry.
The separated spouse retains the first right to apply for letters of administration. In a situation where the couple was estranged, this can be deeply uncomfortable — the person who administers the estate may be someone the deceased had not spoken to in years.
If the separated spouse declines to act, the children (if aged 18 or over) can apply. Where more than one person of the same rank wants to act, up to four can be named on a single application; where they cannot agree, the dispute is one for the Probate Registry.
Joint bank accounts — if they still exist between the separated couple — pass by survivorship to the surviving joint account holder, regardless of separation. This is another reason why couples who have separated should promptly close or convert joint accounts.
Assets held solely in the deceased's name form part of the estate and pass under intestacy.
A new partner who was financially dependent on the deceased, or a cohabiting partner of at least two years, may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. These are alternative routes into the Act, not conditions that must all be met: two years of living together as husband, wife or civil partner is enough on its own, and so is being maintained by the deceased. A claim can reduce what the separated spouse takes, but the court decides what provision is reasonable and nothing is guaranteed.
Such claims must normally be brought within six months of letters of administration being granted.
There are two ways to address this risk:
The divorce is not effective until the final order. Until then, and during the proceedings, the intestacy rules still treat the parties as married.
See our guide to writing a will in the UK in 2026. Also see our guide on what happens after divorce and remarriage.
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