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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 UK intestacy law, a separated spouse retains full inheritance rights until the divorce is legally finalised. Physical separation, however long, counts for nothing.
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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 the separation is irrelevant. A couple who separated 30 years ago but never divorced would still produce this outcome.
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.
If you are living with a new partner in a property you jointly own with a separated spouse as joint tenants, you should urgently consider severing the joint tenancy and converting to tenants in common — this can be done unilaterally, without the other joint tenant's consent, by serving a notice of severance. Legal advice is strongly recommended.
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. Legal advice is recommended if there is any dispute about who should administer the estate.
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. This can partially offset the separated spouse's entitlement, but it is not guaranteed and can be expensive.
Such claims must be brought within six months of letters of administration being granted. Legal advice is essential.
There are two ways to address this risk:
If you are separated, making a will immediately — even while divorce proceedings are ongoing — is strongly advisable. Do not wait for the divorce to be finalised.
See our guide to writing a will in the UK in 2026. Also see our guide on what happens after divorce and remarriage.
If you die married with no children and no will, your spouse inherits your entire estate. How the intestacy rules work, what documents are needed, and next steps.
Married with children and no will? Your spouse gets £322,000 plus personal chattels plus half the remainder. Children share the other half. Full UK intestacy rules explained.
After divorce, your ex-spouse loses all intestacy rights. After remarriage, your new spouse inherits. Children from the first marriage may be left with little. UK intestacy law explained.
Unmarried partners have no automatic inheritance rights under UK intestacy law — regardless of relationship length. What happens to the estate, and what you can do.
Long-term cohabiting partners have no automatic inheritance rights in England and Wales. What the law says, what you can claim, and how to protect your partner.
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