Separated but not divorced? Your spouse may still inherit

Does a separated spouse still inherit if there is no Will?

Yes. In England and Wales, separation alone does not remove a spouse’s inheritance rights. If you are still legally married when you die without a Will, your spouse can still inherit under the intestacy rules.

Only a finalised divorce ends those rights.

What happens under intestacy?

Under the Administration of Estates Act 1925, a surviving spouse is treated as the legal beneficiary regardless of separation.

A separated spouse may receive:

• All personal belongings (if there are children)
• A statutory legacy of £322,000 (if there are children)
• Half of the remaining estate above that amount (if there are children)
• The entire estate (if there are no children) 

The length of separation makes no difference — even decades apart does not change the outcome!

Property and joint assets

• Joint tenants: the home passes automatically to the surviving spouse, regardless of separation
• Tenants in common: the deceased’s share forms part of the estate and may still pass to the spouse under intestacy 

Joint bank accounts pass automatically to the surviving account holder.

Can a separated spouse control the estate?

Yes. A separated spouse has priority to apply for Letters of Administration if there is no Will, meaning they may manage the estate.

Can others make a claim?

Other people, such as a new partner or financial dependants, may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, but these claims are not guaranteed and are often complex.

How to prevent this

To avoid a separated spouse inheriting:

• Make a Will
• Finalise the divorce (only a final order ends inheritance rights).

Even if you are separated, relying on intestacy alone can lead to unexpected outcomes. As soon as you are separated it is time to rethink your Will!

Key point

If you are separated, going through divorce, or unsure how your estate would be treated under the intestacy rules, it is important to get tailored legal advice as soon as possible.

Our team can help you:

• understand your current inheritance position
• put a valid Will in place that reflects your wishes
• protect your property and financial assets
• avoid unintended inheritance outcomes for your family

Even simple steps taken early can prevent significant disputes later on.

If you would like clear advice on your situation please contact a member of our team on 01295 204000 or via email at privateclientwebenquiries@se-solicitors.co.uk. 

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.

https://withfarra.co.uk/guides/no-will-separated-not-divorced