Short answer: Under Florida law, if a divorce had not been finalized when the person died, the parties were still legally married. That means the surviving spouse generally keeps the legal rights of a spouse for estate and probate purposes—so an estranged spouse can often inherit under a will, take against a will through Florida’s elective-share rules, inherit under intestacy, or receive benefits that pass outside probate (for example, life insurance or retirement accounts) unless a different legal step removed those rights before death.
How Florida treats marital status at death
Florida law treats people as married until a final judgment dissolves the marriage. In practical terms, a pending divorce proceeding does not terminate spousal status. Because many estate rights depend on spousal status at the time of death, an un-finalized divorce usually means the surviving spouse still qualifies as a spouse for probate and nonprobate claims.
Wills and the effect of divorce
If the decedent left a will that benefits the spouse, the will’s provisions in favor of that spouse generally remain effective if the divorce was not final. Florida does have a statute that revokes or treats certain gifts to a former spouse as revoked when the marriage is dissolved—but it applies only when the divorce (dissolution) is actually final. See Florida Statutes, section on revocation by dissolution of marriage: Fla. Stat. §732.507.
Beneficiary designations, joint accounts, and trusts
Many assets pass outside probate by beneficiary designation or by survivorship. Examples include life insurance, IRAs/401(k)s, TOD/POD bank accounts, and property held as joint tenants. If the surviving spouse is still the named beneficiary or joint owner at death, those nonprobate transfers usually go directly to the spouse despite any pending divorce, unless another legal step (for example, a changed beneficiary form filed before death) altered the designation.
Elective share and statutory protections
Florida law gives a surviving spouse a right to an elective share of the deceased spouse’s estate. That right exists to prevent a spouse from being left with nothing by a will or other planning. For the statute that creates the right of election and defines the elective estate and calculation rules, see: Fla. Stat. §732.201 and related sections in Chapter 732. A spouse who is legally married at death (i.e., the divorce is not final) can typically assert this right.
Intestate succession if there is no valid will
If the decedent died without a valid will, Florida’s intestacy rules determine who gets what. A surviving spouse who is legally married when the decedent dies is entitled to inherit under the intestacy rules in Chapter 732. See the statute for specific shares and scenarios: Fla. Stat. §732.102 and the rest of Chapter 732.
Homestead, family allowance, and creditor claims
Florida offers strong protections for a surviving spouse as to homestead property and certain family allowances that can affect how much of an estate the spouse can actually be displaced from. These protections can be important when considering whether an estranged spouse can be removed or limited. If homestead or family allowance might apply, consult a Florida probate attorney to review the facts.
Practical examples (hypothetical)
- Example 1: If a husband had filed for divorce but died before the final hearing, and his will left everything to a sibling, his wife—still legally his spouse—could likely elect against the will under Florida’s elective-share rules or inherit under intestacy if there’s no effective will.
- Example 2: If the wife was still named as beneficiary of the husband’s life insurance and the divorce wasn’t final, the life-insurance proceeds generally pay directly to her, even if he had an executed will that disinherited her.
What to do right away
If you are dealing with this situation, take these immediate steps:
- Confirm marital status: check whether a final judgment of dissolution was entered. If there is only a pending petition, the parties remained married at death.
- Locate key documents: will(s), beneficiary forms for insurance and retirement accounts, deeds and title documents, separation agreements, prenuptial/postnuptial agreements, and any bankruptcy or trust documents.
- Contact the probate court clerk where the decedent lived to learn whether probate has been opened and about deadlines. Probate procedures can create short deadlines for asserting claims.
- Preserve evidence and records of communications, transfers, or instructions the decedent left about assets or beneficiaries.
- Talk to an experienced Florida probate attorney quickly—statutory deadlines apply and a lawyer can advise whether the surviving spouse should file an election, object to distributions, or take other steps.
Timing and deadlines
Florida law imposes time limits for many estate-related claims (including probate deadlines and claims against an estate). Because those deadlines can be short and vary with the situation (probate vs. nonprobate assets, whether the estate is being administered formally or informally), prompt action is essential.
When you need a lawyer
If you are the surviving spouse, an heir, an alternate beneficiary, or an executor, consult a Florida probate attorney to evaluate rights and deadlines. A lawyer can review documents, explain whether a spouse may file an elective-share claim, and help protect or challenge transfers and distributions.
Helpful Hints
- Do not assume a pending divorce removes spouse rights—only a final judgment does.
- Check beneficiary designations and joint-title evidence first—many assets pass outside probate.
- Gather the marriage certificate, any divorce filings, the decedent’s will, beneficiary forms, deeds, and account statements before meeting an attorney.
- Ask the probate clerk whether probate has been opened and what notices were filed; some rights depend on whether probate is formal or summary.
- Remember homestead rules and family allowances can protect a surviving spouse even when other assets are contested.
- Act quickly—probate and creditor deadlines can be strict. Even a short delay can limit options.
Disclaimer: This article provides general information about Florida probate and inheritance issues and does not constitute legal advice. Laws change and every situation differs. Speak with a licensed Florida attorney to get advice tailored to your specific facts.