Detailed Answer

Under New Hampshire law, a legal marriage exists until a court issues a final divorce (dissolution) decree. If a decedent died before the divorce was finalized, the surviving spouse is still the legal spouse and retains the rights that come with that status. Practically, this means the estranged spouse can typically:

• inherit under New Hampshire’s intestacy rules if the decedent died without a valid will;
• make claims for statutorily authorized family allowances or allowances for support that the probate process provides to a surviving spouse;
• receive assets that pass outside a will by beneficiary designation (for example, life insurance, payable-on-death bank accounts, or retirement-plan death benefits) if the decedent named the spouse as beneficiary; and
• challenge a will or otherwise participate in the probate administration as a spouse (e.g., filing objections, seeking temporary support from the estate), subject to time limits and procedural requirements of the probate court.

Important distinctions:

• Beneficiary designations and nonprobate transfers. Assets that pass outside probate (life insurance, retirement accounts, TOD/POD accounts) usually follow the named beneficiary regardless of the state of divorce unless the account owner changed the beneficiary. If the decedent left such designations naming the spouse and did not change them before death, those funds will ordinarily go to the named spouse.
• Wills and postmarital revocation. Many states treat a disposition to a spouse in a will differently once the couple divorces; in some jurisdictions a subsequent divorce can revoke earlier will provisions in favor of the former spouse. Because the divorce was not final here, those protections that depend on a final dissolution do not apply — the spouse still benefits from any will provisions that name them. Whether New Hampshire’s statutes or case law operate to revoke or preserve will gifts after divorce are questions best confirmed by looking at the applicable probate statutes and recent cases or by asking a probate attorney or the probate court clerk.
• Separation agreements and temporary court orders. If the parties had a signed separation agreement, a temporary court order, or other court-approved terms that address property or support, those documents can affect what the estranged spouse can claim. A final judgment (dissolution) generally can modify or extinguish some rights, but an unsigned or nonfinal agreement usually will not change the spouse’s standing as a spouse at death.

Where to look in New Hampshire law and court resources:

• New Hampshire statutes and the Probate Division: consult the New Hampshire Revised Statutes and the Probate Division of the New Hampshire Judicial Branch for statutory rules on intestacy, probate procedure, and allowances. (New Hampshire statutes are available at gencourt.state.nh.us (RSA index) and probate information is available from the New Hampshire Judicial Branch at courts.state.nh.us/probate/.)

Typical scenarios (hypothetical examples)

Example 1 — No will, divorce pending: John and Mary are separated and John files for divorce. The divorce remains pending when John dies. Because John and Mary are still legally married at death, Mary is the surviving spouse and may inherit under intestacy rules and seek family allowances from John’s estate.

Example 2 — Will names spouse but divorce not final: Lisa has a will leaving everything to her spouse, Sam. Lisa and Sam are separated and papers for divorce are filed but not finalized. Lisa dies before the divorce is final. Because they remain legally married, Sam is entitled to the testamentary gift unless other valid legal reasons (like an earlier valid amendment or other controlling documents) remove him.

Example 3 — Beneficiary designations: Alex separated from Jordan and intended to remove Jordan as beneficiary of Alex’s retirement plan but died before changing the paperwork. Retirement benefits that name Jordan as the beneficiary will typically pay directly to Jordan regardless of the pending divorce.

Practical steps to take

1. Confirm marital status on the date of death. A pending divorce petition does not change marital status until a final decree is entered.
2. Check estate documents and beneficiary designations. Look at the decedent’s will, payable-on-death accounts, life insurance policies, pension and retirement plan beneficiaries, and any trusts to see who is named to receive assets.
3. Locate separation agreements and court orders. Signed separation agreements or court-approved orders can affect asset divisions and support claims.
4. Contact the probate court clerk. The clerk can explain filing deadlines, required forms, and whether a probate estate must be opened.
5. Consider an attorney. If the estate is significant, contested, or complicated by marital and estate planning documents, consult a New Hampshire probate or family law attorney promptly. An attorney can explain spousal allowances, intestacy shares, and options to negotiate or litigate claims.

Helpful Hints

• Act quickly. Probate deadlines and claim periods are strict. The sooner you review documents and contact the probate court or an attorney, the more options you may preserve.
• Gather key documents: death certificate, will, trust documents, beneficiary forms, bank statements, deeds, separation agreement, and copies of any pending divorce filings.
• Nonprobate assets often control. Insurance and retirement proceeds typically bypass probate and follow the beneficiary designation — check those immediately.
• Don’t assume intent. An estranged spouse may or may not be the intended beneficiary; the written documents control, not family dynamics.
• Consider temporary relief. If someone wrongfully tries to cut off access to estate assets, an attorney can advise whether an emergency motion to the probate court is appropriate.
• Free resources: contact the local probate court clerk or the New Hampshire Judicial Branch for forms and basic procedural information before paying for legal help.