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

Short answer: In Mississippi, if the divorce was not legally finalized before the decedent’s death, the person is still the legal spouse. As a legal spouse, the estranged spouse generally keeps all statutory rights that surviving spouses have under Mississippi law — including intestate shares, certain probate allowances, and the ability to participate in the probate process. This is not legal advice; consult a Mississippi probate or family law attorney for advice about any specific situation.

Detailed answer — how Mississippi law treats an unfinished divorce at death

Under Mississippi law, marital status is determined by the legal status at the moment of death. If the divorce decree is not final (no final judgment dissolving the marriage has been entered), the parties remain legally married. That means the surviving spouse is treated as a spouse for purposes of the decedent’s estate and probate proceedings.

Key practical consequences:

• Intestate succession: If the decedent died without a valid will, the surviving spouse typically inherits under Mississippi’s intestacy rules. The spouse’s share depends on whether there are surviving descendants (children) and whether those descendants are also descendants of the surviving spouse. See Mississippi statutes addressing intestate succession and decedents’ estates for details (refer to state code resources below).
• Will and revoked provisions: If the decedent had a will that left nothing to the estranged spouse, many states revoke bequests to a former spouse when a divorce becomes final. But if the divorce never became final, the will’s provisions in favor of the spouse normally remain valid — the spouse is still considered a surviving spouse under the will.
• Probate allowances and exemptions: A surviving spouse generally may claim statutory probate protections that help support the family immediately after death, such as an allowance for support pending administration (family allowance), exempt property, and homestead allowances in some jurisdictions. Those rights are designed to provide an immediate short-term source of support and are typically reserved for a surviving spouse and minor children.
• Right to serve as personal representative or contest a will: The surviving spouse can petition the probate court to be appointed personal representative (executor/administrator) or otherwise participate in probate. The spouse can also challenge the will’s validity or elect against a will in jurisdictions that allow an elective share.
• Pending separation/agreements: If the parties had a separation agreement, temporary court orders, or executed agreements about property or support, those documents may affect property ownership or rights at death. But a separation agreement usually does not change marital status unless it specifically alters ownership and is enforceable under state law.

Bottom line: an estranged spouse whose divorce was not finalized before death typically has the legal rights of a surviving spouse in Mississippi.

When an estranged spouse might not be able to claim

There are some limited situations where an estranged spouse’s practical ability to collect on estate property is restricted even if legally still a spouse:

• Jointly owned property with rights of survivorship or beneficiary designations: Assets titled jointly with right of survivorship (e.g., joint bank accounts, joint real estate titled JTWROS) or assets with valid beneficiary designations (life insurance, retirement accounts with a named beneficiary) pass outside of probate to the named co-owner or beneficiary. If the estranged spouse is not the named beneficiary or co-owner, they may not get those assets through probate.
• Pre-existing contract or transfer valid under state law: If the decedent validly transferred or gave away assets before death in a way that complies with Mississippi law, those assets may not be available to the probate estate.
• A final divorce, annulment, or legal determination entered before death: If the court entered a final divorce judgment before death, the former spouse is no longer a spouse and loses statutory spousal rights.

What to do immediately if you are the estranged spouse or a family member

1. Confirm marital status and obtain the death certificate and any court records related to the pending divorce to show whether a final decree issued before death.
2. Locate the decedent’s estate planning documents: will, trust documents, beneficiary forms, and deeds or account statements.
3. Contact the probate court in the county where the decedent lived to learn whether an estate has been opened and to review the probate filings.
4. If you are the surviving spouse, file the appropriate probate paperwork to protect your statutory rights (for example, file a claim for exempt property, family allowance, or apply to be personal representative if appropriate).
5. Talk to a Mississippi probate/family law attorney quickly to preserve rights and deadlines—probate rules have strict timing.

Helpful Hints

• Do not assume divorce papers alone terminate rights — only a final court judgment dissolving the marriage does.
• Check beneficiary designations and account titles first; many large assets bypass probate and won’t be controlled by the will or intestacy rules.
• Keep copies of all separation agreements, temporary orders, or exchange of written settlement terms — they may matter in property disputes.
• If you expect disputes, consider hiring a local attorney to file protective probate pleadings promptly.
• Act quickly: probate deadlines can be short and missing them can limit the ability to claim allowances or contest probate actions.

Statutes and resources (Mississippi)

Mississippi’s laws governing decedents’ estates, probate procedures, and intestate succession are contained in the Mississippi Code. For the controlling statutory provisions and current text, consult the official Mississippi Code pages maintained by the state legislature: Mississippi Legislature (statutes and code). Look under the titles and sections addressing decedents’ estates, intestate succession, and probate practice for specific statutory language and procedures.

Final notes and next steps

If you are involved in a situation where a divorce was pending at the time of death, preserve records and contact a Mississippi attorney licensed in probate and family law. A lawyer can review the court file, the decedent’s estate documents, asset titles and beneficiary forms, and explain exactly what the surviving spouse may claim and what procedural steps to take.

Disclaimer: This article provides general information about Mississippi law and does not constitute legal advice. It is not a substitute for consulting an attorney about the specific facts of any case.