Detailed Answer — legal effect of an unfinalized divorce in Montana

In Montana, marital status at the moment of death controls who is treated as the surviving spouse for probate and intestacy purposes. If a divorce decree is not entered before death, the couple remains legally married. That means the estranged spouse typically retains the same rights as any surviving spouse under Montana probate and domestic relations law.

Key points:

• Intestacy and probate claims: If the decedent left no valid will, the legal spouse can inherit under Montana’s intestate succession rules. See Montana Probate (Title 72) for the statutes governing intestacy and estate administration: Montana Code Annotated, Title 72 (Probate).
• Wills and testamentary gifts: A will speaks as of the decedent’s death. If a will names the estranged spouse as beneficiary and the divorce was not final, the gift will generally stand. Many states automatically revoke testamentary gifts to an ex-spouse upon a final divorce; because the divorce was not final, that revocation will not have occurred. For Montana statutory rules on wills and related probate matters, see: Title 72, MCA.
• Non-probate assets (life insurance, retirement, pay-on-death accounts): These pass according to beneficiary designations or contract terms, not by the will. Whether an estranged spouse can take such assets depends on who is named as beneficiary and on applicable contract or plan law. If the estranged spouse remains named as the beneficiary, they can usually receive payment even if the couple were separating.
• Joint ownership and survivorship property: Real estate or accounts held in joint tenancy or as joint owners with rights of survivorship will typically pass directly to the surviving joint owner—again regardless of a pending divorce—unless a court has already modified ownership rights.
• Separation agreements and court orders: If the parties have a written separation agreement or a temporary court order that allocates property, support, or rights, those instruments may affect what the estranged spouse can claim. A separation agreement incorporated into a court order can change property rights even if the divorce is pending.
• Survivor benefits and third-party rules: Social Security survivor benefits, pension rules, and other third-party programs have their own criteria for who qualifies as a surviving spouse. Eligibility often depends on legal marital status at death. For domestic relations rules such as divorce procedure, see Montana’s Title 40: Montana Code Annotated, Title 40 (Domestic Relations).
• Practical consequence: Because an unfinalized divorce usually leaves the estranged spouse with inheritance and administration rights, executors, family members, and potential heirs should not assume the spouse is legally out of the picture until the court has entered a final decree.

Hypothetical example: John separated from Mary and filed for divorce. He died while the divorce was pending and left no will. Because the divorce was not finalized, Mary is still John’s legal spouse and can file an intestate claim and pursue probate remedies as a surviving spouse. If John had a life insurance policy naming Mary as beneficiary, the insurer would likely pay Mary regardless of the pending divorce, unless John had changed the beneficiary before death.

Situations that can change the outcome

• If a court previously approved a separation agreement that assigned or transferred specific assets away from the decedent, that agreement can limit what remains in the probate estate.
• If the decedent had already changed beneficiaries on nonprobate assets (insurance, retirement), those assets will flow to the named beneficiaries rather than through probate.
• If the spouses executed a valid property settlement and a court incorporated it into an order, the order could supersede intestacy claims.

What an estranged spouse can typically do in Montana

1. File a claim in the decedent’s probate case as a surviving spouse (to seek intestate share, homestead, family allowance, exempt personal property, or other statutory protections).
2. Assert rights to nonprobate assets if they are named beneficiary or joint owner.
3. Bring forward any separation agreements or court orders that affect property division.
4. Request a court determination if the estate executor tries to exclude the estranged spouse without legal basis.

Helpful Hints

• Confirm marital status by checking whether a final divorce decree exists. If no decree appears in court records, the spouse likely remains married.
• Locate the will and any separation agreements. The will controls testate distributions; a separation agreement can alter property rights.
• Check beneficiary designations on insurance policies, retirement plans, and payable-on-death accounts. Those documents often control nonprobate transfers.
• Do not distribute estate assets without following probate procedures. Improper distributions can create personal liability for executors or beneficiaries.
• If you are the estranged spouse, gather documentation showing marriage, separation agreements, and any evidence of support or intent to divide property.
• Contact the probate court clerk in the county where the decedent lived to learn if a probate case is open and how to file appropriate claims.
• Because state rules vary and specific facts change outcomes, consult a Montana probate or family law attorney for personalized advice. For Montana statutes on probate and domestic relations, start at the Montana Legislature site: Montana Code Annotated (MCA).