Short Answer

If the divorce was not legally finalized in Wisconsin, the couple remained legally married at the decedent’s death. That means the surviving spouse generally keeps the legal rights of a spouse — including intestate shares, certain probate and family allowances, and the ability to challenge a will or make other claims. Whether the estranged spouse actually gets assets depends on how property is titled, what the will or beneficiary designations say, and whether other heirs or creditors bring disputes. This is general information and not legal advice.

Detailed Answer — How Wisconsin Law Treats an Unfinished Divorce

1. Legal marital status at time of death

In Wisconsin, a marriage remains legally intact until a court enters a final divorce (judgment of divorce). If the court has not issued that judgment, the person who filed for divorce is still legally married. That status controls many estate-law questions: the surviving spouse is the spouse under probate law until the divorce judgment is entered.

2. What that means for estate claims

• Intestate succession: If the decedent died without a valid will, the legal spouse normally inherits under Wisconsin’s intestacy rules. Whether the spouse receives the entire estate or a share depends on whether there are surviving children or other descendants.
• Will challenges and revocation-by-divorce rules: Many states treat divorcing spouses differently once a divorce is final (for example, a will leaving everything to an ex can be treated as if the ex predeceased the testator). In Wisconsin, until a divorce is final, a spouse named in a will remains a spouse for will interpretation and probate rights. A pending divorce does not by itself revoke gifts to the spouse.
• Beneficiary designations: Life insurance policies, retirement accounts (IRAs, 401(k)s), and transfer-on-death (TOD) accounts typically pay to the named beneficiary. If the decedent named the estranged spouse as beneficiary and the divorce was not final, the spouse usually remains the recipient unless the beneficiary was changed before death.
• Joint property and survivorship: Property held as joint tenants with right of survivorship or tenancy by the entirety (if applicable) passes automatically to the surviving joint owner regardless of divorce status unless the decedent changed the title before death.
• Family allowances, exempt property, and homestead: Wisconsin law gives spouses priority for certain probate allowances (for example, a family allowance, some exempt personal property, and a homestead allowance). A surviving spouse can usually claim those protections even if separated but not divorced.

3. Pending divorce proceedings and court orders

Sometimes a divorce filing includes temporary orders about support, assets, or who may live in the family home. Those orders continue to have force until the court modifies them or issues a final judgment. A temporary order does not end marriage, nor does it necessarily change who inherits unless the parties agreed otherwise in a binding written agreement approved by the court.

4. Practical examples

Example A — No will, divorce not final: If the decedent died intestate and was still legally married, the surviving spouse would be first in line for intestate inheritance under Wisconsin’s rules. The presence of children (whether children of both spouses or from a prior relationship) affects the spouse’s share.

Example B — Will leaving everything to new partner, divorce not final: The will remains valid with respect to a legal spouse if the divorce wasn’t final. The estranged spouse may be able to claim the statutory family allowances, challenge the will, or assert that the deceased lacked capacity or was unduly influenced.

Example C — Life insurance beneficiary unchanged: If a life insurance policy lists the estranged spouse as beneficiary and the policy was not changed before death, the insurer typically pays that beneficiary despite separation unless the policy or law says otherwise.

5. Common disputes that arise

• Whether the surviving spouse is entitled to a share of the estate because the parties were only separated, not divorced.
• Whether a will or beneficiary designation should be set aside because the decedent intended otherwise but never completed changes before death.
• Conflicts over who controls jointly titled property or accounts when an estranged spouse asserts survivorship rights.

6. What heirs, executors, and estranged spouses should consider doing immediately

• Locate the decedent’s will and any beneficiary designations. Those documents guide how assets may transfer.
• Check how key assets are titled (joint tenancy, payable-on-death, beneficiary on record). Title often decides outcome outside probate.
• File forms required for probate and alert the probate court that a spouse survives. Executors should preserve assets and follow court instructions.
• Talk to a probate attorney promptly if there is disagreement about distribution, beneficiary designations, or if an estranged spouse makes a claim. Timelines and procedural rules matter.

7. Where to look in Wisconsin law

For basic public information on probate and estate administration in Wisconsin, see the Wisconsin Courts’ probate and estate self-help resources: https://www.wicourts.gov/services/public/selfhelp/estate/index.htm. For the full text of Wisconsin statutes, visit the official statutes site: https://docs.legis.wisconsin.gov/statutes/. These sources can point you to the specific statutory provisions for intestate succession, probate procedures, homestead and family allowances, and related rules.

Helpful Hints

• Remember: Separation ≠ divorce. Only a final court judgment ends the marriage.
• Check beneficiaries — life insurance and retirement accounts often trump wills and pass outside probate.
• Title matters. Jointly held property with survivorship rights may pass automatically to the co-owner.
• If you are the executor, notify the court that a spouse survives and follow probate procedure closely to avoid later disputes or creditor claims.
• If you are an estranged spouse, do not assume you automatically get everything; consult an attorney to understand likely outcomes, especially if there are children or complex assets.
• Keep records of any separation agreements, temporary court orders, or communications that might show the decedent’s intent for assets.
• Act quickly. Probate deadlines and statute-of-limitations for estate claims can be short.