Detailed answer — what happens under Colorado law

If someone dies before their divorce is finalized, Colorado law generally treats that person as still legally married at the time of death. That means the surviving spouse usually retains the rights a married person has at death. These rights can include an intestate share (if there is no valid will), certain statutory protections (homestead allowance, exempt personal property), and the ability to make claims against the estate in many circumstances.

Key points

• Marital status at death controls. If the divorce decree is not final when the decedent dies, the couple remains legally married. The pending divorce does not automatically terminate spousal status.
• Intestate succession. If the decedent left no valid will, Colorado’s probate rules for intestate succession apply and a lawful spouse can inherit as a surviving spouse under the Probate Code (see Colorado Revised Statutes, Title 15 — Probate, Trusts, and Fiduciary Relations). For the current text of Title 15, see the Colorado statutes search: https://leg.colorado.gov/statutes
• Will and beneficiary designations. If the decedent had a valid will leaving assets to the estranged spouse, those gifts will usually stand because the parties were still married. For assets transferred outside probate (life insurance, retirement accounts with named beneficiaries, payable-on-death bank accounts), the named beneficiary controls distribution unless the beneficiary designation itself is invalid. Note: Some states automatically revoke beneficiary designations to an ex-spouse upon divorce; whether that applies depends on the state statute and effective timing. Check Title 15 provisions and beneficiary-revocation rules at the Colorado statutes site: https://leg.colorado.gov/statutes
• Elective share, homestead, and exempt property. Colorado law provides a surviving spouse certain statutory protections such as a homestead allowance and an allowance in lieu of homestead or exempt property; a surviving spouse can also assert claims to protect support and property. If the divorce is not final, those claims remain available to the surviving spouse. (See Colorado statutes under Title 15 for the specific statutory provisions.)
• Temporary divorce orders and settlement negotiations. Temporary or interim orders made during the divorce process (for custody, support, or property use) do not change the spouse’s status for purposes of inheritance unless the court entered an order that specifically affects ownership and the order is final before death.
• Jointly titled property and non-probate transfers. Joint tenancy or accounts with rights of survivorship, and beneficiary-designated assets, typically pass outside probate to the surviving co-owner or named beneficiary even if the parties were separated or in divorce proceedings. The existence of a divorce action does not automatically change those non-probate mechanisms.
• Common‑law marriage or putative spouse issues. Colorado recognizes valid common‑law marriages under established conditions. If the couple held themselves out as married and met the state’s requirements for marriage, the surviving partner may have spousal rights even if a formal divorce had not been filed. Check Title 14 and Title 15 provisions and consult a Colorado attorney to confirm how these doctrines apply.

Practical examples (hypotheticals)

Example 1 — No will, divorce not final: John and Mary are separated and in active divorce proceedings. John dies before a final decree. Because John was still legally married, Mary is his surviving spouse for probate purposes and can inherit under Colorado’s intestacy rules.

Example 2 — Will naming estranged spouse: Sarah wrote a will leaving everything to her estranged husband, Tom, but their divorce is not finalized when Sarah dies. Tom remains the lawful spouse and is entitled to inherit under the will unless the will is otherwise invalid.

Example 3 — Life insurance beneficiary unchanged: Alex listed his estranged wife as the life insurance beneficiary and died before divorce was final. The insurance proceeds generally go to the named beneficiary outside probate unless the policy or law provides otherwise.

What an executor or personal representative should do

1. Confirm the decedent’s marital status at the date of death (review court records to see if a decree was entered).
2. Locate wills, beneficiary designations, prenuptial agreements, and any court orders from the pending divorce file.
3. Advise potential claimants of their rights and consult with a probate attorney experienced in Colorado law before making distributions.

Because probate and family law can interact in complicated ways, an estate’s executor should consult a Colorado probate attorney promptly to evaluate claims and statutory duties.

Helpful hints

• Do not assume separation or pending divorce ends marital rights. Only a final decree does that.
• If you are the surviving spouse, gather the divorce petition, any temporary orders, the decedent’s will (if any), beneficiary forms for life insurance and retirement plans, and title documents for real estate.
• If you are the executor, document your efforts to locate a will and beneficiaries and confirm marital status with certified court records before distributing assets.
• Jointly titled property and beneficiary-designated accounts often pass outside probate — check titles and beneficiary forms immediately.
• Consider quick legal advice. Small errors in handling a claim by a surviving spouse can expose the estate or the personal representative to later litigation.
• Use the Colorado statutes search page to read the relevant probate statutes yourself: https://leg.colorado.gov/statutes
• Find general probate guidance from the Colorado Judicial Branch: https://www.courts.state.co.us/ (search Probate & Court Administration resources).