Short answer

If a spouse dies before the divorce is final, Delaware law generally treats the surviving spouse as still married for probate and inheritance purposes. That means the estranged spouse can usually inherit under a will, take an intestate share if there is no valid will, and may be eligible to make a statutory election against the estate—unless there is a binding premarital or separation agreement, a valid beneficiary designation that overrides other documents, or a court order stating otherwise. Because rules and deadlines apply, act quickly and consult a probate attorney.

Detailed answer — how Delaware law applies

This section explains the typical legal effects when a spouse dies before a planned divorce is finalized. This is a general explanation of how Delaware probate and domestic-relations law will usually work; it is not legal advice.

1. Marital status matters at death

Delaware treats marital status at the moment of death as controlling for estate matters. As long as the divorce has not been finalized by a court, the parties remain legally married for purposes of intestacy rules, spousal entitlements, and many beneficiary or will-related issues. See Delaware statutes governing decedents’ estates and domestic relations for the relevant statutory framework: Del. Code Title 12 — Decedents’ Estates; Trusts and Fiduciaries and Del. Code Title 13 — Domestic Relations.

2. If there is a will

– If the decedent left a valid will naming the estranged spouse as a beneficiary, that provision normally remains effective if the divorce is not final. A pending divorce generally does not automatically revoke will gifts to a spouse.
– Many people expect separation or a pending divorce to cancel a will, but it usually requires a final divorce decree (or a specific revocation executed after separation) to remove spouse-beneficiaries by operation of law. Check the will for a clause that addresses separation or divorce; some wills include conditional language meant to revoke gifts upon divorce, but the precise effect depends on the language and Delaware law.

3. If there is no will (intestacy)

When someone dies without a valid will, Delaware’s intestacy rules determine who inherits. Because the parties are still legally married until the court issues a divorce decree, the surviving spouse typically is entitled to the spousal share under Delaware intestacy rules. See Del. Code Title 12 for the statutes that govern intestate succession and distribution.

4. Elective share and spousal protections

Many states, including Delaware, provide statutory protections that let a surviving spouse elect to take a statutory share of the estate rather than what the will provides. That election is typically available only to someone who is a surviving spouse when the decedent dies. A pending-but-unfinished divorce will not prevent that right from existing because the parties remain married until the divorce is final. See the Delaware decedent-estate statutes and probate procedures at Del. Code Title 12 for more detail.

5. Beneficiary designations and nonprobate assets

Nonprobate transfers—such as life insurance proceeds, retirement accounts (401(k), IRAs), and payable-on-death bank accounts—pay to the named beneficiary regardless of what a will says, unless federal or state law provides otherwise. If the estranged spouse remains the named beneficiary on those accounts and the divorce is not final, the spouse will generally receive those assets. If you expect to disinherit a spouse, update beneficiary designations promptly during life; only a final divorce (or an express beneficiary change) will guarantee the change in many cases.

6. Agreements and court orders can change the result

There are important exceptions. A valid prenuptial or postnuptial agreement, a signed separation agreement that expressly waives estate rights, or a court order in the divorce process may waive or limit a spouse’s estate claims even before the divorce is final. Those documents must be enforceable under Delaware contract and family-law rules to override statutory rights. See Del. Code Title 13 for statutes about marital agreements and obligations.

7. Practical consequences and immediate steps

– The estranged spouse should be aware they may have legal rights to inherit and may want to act quickly if they intend to assert rights (for example, an elective share election).
– Other potential heirs should not assume the estranged spouse is out of the picture until the divorce is final and all relevant waivers are in effect.
– Probate administrators and executors should treat the spouse as a potential heir and follow statutory notice and claims procedures for Delaware probate courts.

8. Time limits and probate procedure

Courts enforce deadlines for filing claims, making elections against the estate, and contesting wills. Because timing can be critical, consult a probate attorney promptly after learning of the death to preserve any rights and meet filing deadlines under Delaware probate rules. General probate information and court contacts are available at the Delaware Courts website: courts.delaware.gov.

Helpful Hints — what to do next

• Confirm marital status and court filings: get a copy of the death certificate and check whether a divorce complaint or temporary orders were filed.
• Check for a will and beneficiary designations: locate estate planning documents, insurance policies, retirement account beneficiary forms, and joint-account paperwork.
• Look for written waivers or separation agreements: these may waive spousal rights even before a final divorce.
• Contact the probate court or register of wills in the county where the decedent lived to learn about filing deadlines and forms.
• Act quickly on elective-share or other statutory claims—missed deadlines can forfeit rights.
• Preserve evidence of intent: communications, signed documents, and drafts of estate documents can matter if there is a dispute.
• Consult a Delaware probate or family law attorney: an attorney can evaluate wills, nonprobate designations, agreements, and the likely outcome in light of Delaware statutes and case law.