Virginia — If Divorce Wasn’t Final, Can an Estranged Spouse Claim Under the Estate?

Detailed answer

Short answer: Under Virginia law, a person who remains legally married at the moment of death is a surviving spouse for estate purposes. If a divorce was not final, the estranged spouse generally still has the same rights to inherit, to make claims in probate, and to exercise statutory spousal protections as any surviving spouse.

Why the legal marriage matters

Virginia treats marital status at the time of death as determinative for inheritance and other spousal rights. A separation or a pending divorce case does not by itself end the marriage. Only a final divorce or annulment entered by a court terminates the legal relationship and removes the person from the status of surviving spouse for estate and probate rules.

See Virginia’s Code for the statutes governing marriage and divorce (Title 20) and for probate, intestacy, wills, and spousal rights (Title 64.2):
Va. Code Title 20 — Domestic Relations and
Va. Code Title 64.2 — Wills, Trusts, and Administration.

What rights an estranged-but-not-divorced spouse can assert

Intestate succession. If the decedent died without a valid will, the surviving spouse is the first in line under Virginia’s intestacy rules to inherit (subject to other survivors). See the descent-and-distribution provisions in Title 64.2: Va. Code, Title 64.2, Chapter 4.
Elective share and spousal allowances. Even when there is a will that disinherits a spouse, Virginia law provides statutory protections for a surviving spouse (family allowance, exempt property, and the statutory right to take against the will/elective share). These remedies are available to a legally married surviving spouse. Relevant provisions appear in Title 64.2 (wills and administration).
Beneficiary designations. Life insurance proceeds, retirement accounts, and some payable-on-death accounts pass to the named beneficiary regardless of the will. If the estranged spouse is named as beneficiary on those instruments, they will generally receive those proceeds unless the beneficiary designation is changed before death.
Ability to participate in probate. A surviving spouse may open and participate in probate, file objections to estate administration, and assert claims for support or expenses incurred before death.

When a separated person may not inherit

A final divorce or a valid annulment that is entered prior to death removes the marital relationship and the spouse is no longer a surviving spouse for these purposes. A mere separation, a signed but unfiled separation agreement, or divorce papers filed but not yet finalized do not end legal spousal status. Also, if a spouse has been legally declared incompetent or there are particular contractual provisions (such as valid prenuptial/postnuptial agreements), the outcome could differ—those facts change property and contractual rights.

Wills and divorce: what happens to provisions for a former spouse

Many states have statutes that impact how a later divorce affects an existing will (for example, revoking bequests to an ex-spouse), but the controlling rule is the Virginia probate and wills law in Title 64.2. In practice, if someone wants to be sure a former spouse gets nothing, it’s safest to revise beneficiary designations and rewrite the will after the divorce is finalized.

Practical example

Hypothetical: John and Mary separated two years ago. John filed for divorce but the case never reached a final decree. John dies. Because the court never entered a final divorce, Mary is still John’s legal spouse. If John left no will, Mary can inherit under intestacy. If John left a will leaving everything to a sibling, Mary can still assert statutory spousal protections (for example, an elective share or family allowance) and can claim assets that pass to the named beneficiary only if John changed those beneficiary designations before death.

What to do right away if you are the estranged spouse or an heir

Confirm the marital status and court docket. Obtain a copy of the death certificate, the marriage certificate, and check the local circuit court docket for any finalized divorce decree.
Find estate documents. Look for a will, trust documents, beneficiary designations, and any separation or settlement agreements.
Contact the probate court. Learn whether the estate has been opened and who the personal representative (executor/administrator) is.
Preserve evidence. Keep copies of relevant documents and communications about separation, support, or intent.
Talk to a probate or estate attorney. An attorney can explain Virginia-specific deadlines and procedures and can help you file for spousal allowances or an elective share if appropriate.

Timing and deadlines

Virginia imposes time limits and procedural rules for probate contests and for asserting statutory spousal rights. These limits vary with the claim (for example, contesting a will versus claiming exempt property or filing for a family allowance). Act promptly to protect rights and consult a lawyer to learn exact deadlines in your case.

Where to find the law

Useful code resources:

Bottom line: if the divorce is not final under Virginia law, the estranged spouse remains the legal spouse and generally can make claims on the estate. Final court action (a decree ending the marriage) is the usual event that removes a spouse’s statutory status and associated probate rights.

Helpful hints

Do not assume separation equals no rights—only a final decree does.
Check beneficiary designations on life insurance and retirement accounts first; they often control who gets those funds.
Locate and review any separation or prenuptial/postnuptial agreements—these can affect claims.
Open communication with the probate court can reveal whether the estate is already being administered and who the personal representative is.
Act quickly. Probate and estate deadlines can be short and vary by claim type.
When in doubt, consult a Virginia probate or estate attorney to preserve your rights and to learn exact statutory deadlines.

Disclaimer: This article explains general Virginia law and common practice. It is educational only and does not constitute legal advice. For advice about a specific situation, consult a licensed Virginia attorney who can review your facts and applicable court records.

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