Short answer

If a married person dies before a divorce is final in North Dakota, the surviving spouse is still the legal spouse. That means the surviving spouse generally keeps the same statutory and probate rights as any spouse — including intestate-share rights if there is no valid will, certain allowances and exemptions from the estate, and the ability to challenge or claim against the estate — unless the spouse gave up those rights by a valid agreement or by a final divorce decree that became effective before death.

Detailed answer — how North Dakota law treats an estranged spouse when divorce is not final

1. Marital status controls — not feelings or separation

Under North Dakota law, a person who is still legally married at the moment of death is the decedent’s spouse for probate and inheritance purposes. Legal separation or an informal breakup does not end the legal relationship. A final divorce decree (or other official termination of the marriage) is required to remove those spousal rights.

2. If there is no valid will (intestate succession)

If the decedent died without a valid will, North Dakota’s intestate succession rules determine who inherits. The surviving spouse is usually a primary heir and will inherit either the entire estate or a major portion — depending on whether the decedent had surviving children or other relatives. See North Dakota Century Code — Probate provisions for intestate succession: North Dakota Century Code, Title 30.1 (Probate).

3. If there is a will

A surviving spouse can inherit under the will if the will names the spouse as a beneficiary. If the will disinherits the spouse, many states allow a surviving spouse to make an elective claim against the estate to receive a statutory share instead of what the will gave. Whether an elective share exists and how it operates depends on North Dakota statutes and probate rules; consult the probate code and the court handling the estate. Helpful general probate information is available from the North Dakota Courts: North Dakota Courts — Probate.

4. Effect of a pending divorce, separation agreement, or prenuptial agreement

• If the parties signed a valid prenuptial or postnuptial agreement that waives spousal inheritance rights, that agreement can prevent a spouse from claiming under the estate (provided the agreement is enforceable).
• A court-ordered legal separation generally does not terminate spousal probate rights unless the separation order specifically and lawfully does so under statute or a binding agreement exists.
• If the divorce was filed but not finalized, the pending dissolution does not by itself strip the surviving spouse of statutory probate rights.

5. Other statutory protections the surviving spouse may have

Even if the will leaves a spouse little or nothing, the surviving spouse may have statutory protections such as:

• Exempt property (certain personal property the spouse can keep outside of probate).
• Family allowance or support from the estate during administration to provide for reasonable living expenses.
• Homestead allowances or similar protections for the spouse who occupies the family home.

These protections are part of North Dakota probate law. See North Dakota Century Code, Title 30.1 (Probate): https://www.legis.nd.gov/cencode/t30-1.

6. Practical consequences and common scenarios

• If the estranged spouse is named in the will and the divorce is not final, they receive under the will unless the will is successfully challenged.
• If the will disinherits the spouse, the spouse may still be entitled to an elective share or statutory allowances; quick action is often necessary to preserve those rights in probate.
• If there is a separation agreement that bars inheritance and is enforceable, the agreement could control instead of intestacy rules.
• If the decedent changed beneficiary designations on life insurance or retirement accounts and named someone else, those non-probate beneficiary designations typically control unless state law or an agreement says otherwise.

7. What family members should do right away

Whether you are the estranged spouse, another family member, or an executor, take these steps:

• Locate the will and any prenuptial/postnuptial or separation agreements.
• Check beneficiary designations on insurance, retirement accounts, and payable-on-death accounts.
• Contact the probate court where the decedent lived to see whether an estate has been opened.
• Consult a probate attorney promptly — probate deadlines, deadlines to file claims or to elect against a will, and documentation requirements are time-sensitive.

How an attorney can help

An attorney who handles probate and family law can:

• Review marriage, separation, divorce, and estate documents to determine legal rights.
• File necessary probate pleadings or a petition to elect against a will if allowed under state law.
• Challenge or defend the validity of agreements or beneficiary changes, if appropriate.
• Protect the estate’s and heirs’ rights during administration and litigation.

Disclaimer

This article explains general principles of North Dakota probate and family law and is not legal advice. It does not create an attorney-client relationship. For advice that applies to specific facts, contact a licensed North Dakota attorney promptly.

Helpful Hints

• Do not assume separation ends spousal rights — only a final divorce or a valid waiver does.
• Look for prenuptial, postnuptial, or separation agreements; these may be decisive.
• Find all estate planning documents and beneficiary forms quickly — non-probate beneficiaries often trump wills.
• Open probate records early to learn deadlines and the personal representative’s actions.
• Ask an attorney about family allowances, exempt property, and elective-share remedies under North Dakota law.
• Keep documentation of marriage, any pending divorce filings, and any written agreements or communications about the separation.
• Use official sources when researching statutes: North Dakota Century Code (Title 30.1 — Probate): https://www.legis.nd.gov/cencode/t30-1, and North Dakota Courts probate information: https://www.ndcourts.gov/legal-resources/probate.