Can an estranged spouse still claim from an estate if the divorce wasn’t finalized?

Short answer: Yes — under Maryland law, an estranged spouse who remains legally married when their spouse dies is still the surviving spouse for probate and intestacy purposes. That person typically retains rights to an intestate share, certain statutory allowances, and may have a right to elect against a will. Those rights generally continue until a final divorce decree is entered.

Detailed answer — how Maryland law treats an unfinished divorce

First, define the status: “estranged” usually means the couple is separated in fact, but a spouse remains legally married until the court issues a final decree of divorce. In Maryland, legal marriage ends only when a judge signs the final judgment of absolute divorce. Until that happens, the surviving spouse is the decedent’s spouse in the eyes of probate and inheritance law.

What that means in practice:

• Intestate succession: If the decedent died without a valid will, the surviving spouse inherits under Maryland’s intestacy rules. Surviving spouse shares and priority are determined by the Estates and Trusts statutes governing intestacy. For Maryland court guidance on intestacy and related probate topics, see the Maryland Courts Legal Help pages: https://www.mdcourts.gov/legalhelp/wills.
• Statutory allowances and protections: Maryland provides certain immediate allowances to a surviving spouse and minor children that help with support during probate (for example, family or homestead allowances, and an allowance for support). These statutory protections are available to the surviving spouse so long as the divorce is not final. You can find practical information from the Maryland Courts on estate administration here: https://www.mdcourts.gov/legalhelp/estate.
• Elective share or right to claim against a will: If the decedent left a will that disinherits the spouse or leaves a smaller share, the surviving spouse may have a statutory right to take a required minimum share (often called an elective share) instead of what the will gives. That right generally applies only to someone who is the spouse at the time of death. (Statutory details are in the Maryland Estates & Trusts statutes; the Maryland General Assembly provides the annotated code online at: https://mgaleg.maryland.gov/mgawebsite/.)
• Effect of pending divorce papers: Filing for divorce or a pending separation agreement does not by itself terminate spousal status. Until the court signs the final decree, the parties remain married. Therefore, an estranged spouse with an unfinalized divorce can assert the same probate rights a married spouse would.
• Exception — property already transferred or court-ordered limitations: If parties executed a valid separation agreement or property settlement that changed ownership (for example, deed transfers or retirement beneficiary changes made before death), those transactions often control ownership regardless of marital status. Also, if a court has already entered orders that alter property rights or create enforceable waivers (e.g., a valid prenuptial/postnuptial waiver or a divorce-related order that survives until final judgment), those documents may limit post-death claims. Review the documents and orders carefully with counsel or the Register of Wills.

What to expect in probate and common next steps

If a spouse dies while divorce is pending, probate will usually proceed under the Register of Wills in the county where the decedent lived. Common steps and timelines include:

• Someone (a nominated personal representative under a will or an intestate administrator) files for probate.
• The Register of Wills and/or Orphans’ Court notifies potential heirs and creditors. The surviving spouse should make sure the court and personal representative know of their identity and marital status.
• The surviving spouse may assert statutory allowances, file a claim against the estate, or elect against the will (if there is one). Deadlines to take these actions exist, so prompt action matters.

Practical examples (hypotheticals)

Example 1 — No will, divorce not final: A married person files for divorce but dies before the court enters a final decree. The surviving (estranged) spouse inherits under Maryland intestate rules just like any other surviving spouse.

Example 2 — Will disinheriting spouse, divorce not final: The decedent had a will leaving most assets to a friend and naming that friend as executor. Because the couple was still legally married, the surviving spouse can usually elect to take the statutory share instead of accepting the will’s distribution. That election must be made within the time and manner required by Maryland probate rules.

How heirs or non-spouse family members can protect themselves

• Verify marital status: Obtain a certified copy of the decedent’s death certificate and check whether a final divorce decree exists.
• Review estate documents: Get a copy of any will, deeds, beneficiary designations, prenuptial agreements, separation agreements, and any pending divorce filings.
• Contact the Register of Wills or Orphans’ Court: These local offices can explain probate procedures, notice requirements, and how to assert or oppose claims. Maryland Registers of Wills information is at: https://www.mdcourts.gov/registers.
• Act promptly: Probate deadlines can be short. File required pleadings or objections quickly to avoid losing rights.

When to get a lawyer

Speak with an estate or probate attorney if you are the estranged spouse who might claim benefits, or if you are an heir concerned an estranged spouse may assert rights. A lawyer can:

• Confirm the surviving spouse’s rights under Maryland law.
• Help file an elective-share claim or a petition for allowances.
• Challenge or defend against claims based on separation agreements, beneficiary designations, or alleged transfers made to defeat creditors or heirs.

Helpful hints

• Don’t assume separation equals divorce. Only a final divorce decree ends the marriage for probate purposes.
• Locate and preserve key documents: death certificate, will, deeds, beneficiary forms, divorce pleadings, separation or property settlement agreements, and any prenuptial/postnuptial agreements.
• If you are the surviving spouse, notify the probate court and register your claim early. Missing deadlines can forfeit rights.
• If you suspect assets were removed or title was changed to avoid claims, gather evidence and contact an attorney quickly — courts may unwind fraudulent transfers, but timing matters.
• Use the Register of Wills and Orphans’ Court as a resource. They can explain filing and notice procedures for the county where the decedent lived: https://www.mdcourts.gov/registers.

Where to read Maryland law and find local resources

• Maryland Courts – Legal Help (wills, probate, intestacy): https://www.mdcourts.gov/legalhelp/wills
• Maryland Courts – Register of Wills: https://www.mdcourts.gov/registers
• Maryland General Assembly — Maryland Code (search for Estates & Trusts provisions): https://mgaleg.maryland.gov/mgawebsite/

Disclaimer: This article explains general Maryland law concepts and is for educational purposes only. It is not legal advice. For advice specific to your situation, consult a licensed Maryland attorney.