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Short answer: If a divorce was not finalized before a spouse died, Ohio treats the couple as still married. The surviving (estranged) spouse keeps the legal rights of a surviving spouse unless some other legal step removed those rights (for example, a valid signed waiver). That means the estranged spouse can generally inherit under the decedent’s will, take an intestate share if there is no valid will, and assert certain statutory probate protections available to surviving spouses.

This explanation summarizes the usual consequences under Ohio probate and family law. It is educational only and not legal advice. You should consult a licensed Ohio attorney about any specific case.

Why the divorce being unfinished matters

Marriage status at the time of death controls many rights. Ohio recognizes the marital status that exists on the decedent’s date of death. If no final judgment of divorce (dissolution) had been entered, the couple remains legally married.

Key practical consequences under Ohio law

• Rights under a will: If the decedent left a will naming the estranged spouse as beneficiary, the spouse will remain a beneficiary and may claim those assets.
• Intestate succession: If there is no valid will, the surviving spouse can inherit according to Ohio’s intestacy rules. See Ohio Revised Code, Chapter 2105 for intestate distribution rules: Ohio Rev. Code Chapter 2105.
• Statutory probate protections: Surviving spouses may be entitled to statutory allowances such as an exempt property allowance, family allowance, or homestead allowance under Ohio probate procedures and statutes. These protections can let a surviving spouse receive certain property or payments from the estate even if the will tries to cut them out. See Ohio Rev. Code Chapter 2105 and Chapter 2107 for probate/will rules: Ohio Rev. Code Chapter 2107.
• Effect of a later divorce judgment: If the divorce had been finalized before death, many testamentary gifts and intestate rights in favor of the former spouse would be revoked by operation of statute or treated as if the spouse had predeceased the decedent. But that revocation only applies once the divorce is final.

Common fact patterns and how courts typically handle them

Below are a few hypothetical situations and general outcomes under Ohio law.

• Hypothetical A — Divorce filed but not final; no will: The surviving estranged spouse inherits under Ohio intestacy rules just like any other surviving spouse. The ongoing divorce case generally does not cut off that right.
• Hypothetical B — Divorce filed but not final; will leaves estate to children and not to spouse: The surviving spouse may be able to claim the statutory family allowance, exempt property, or other spousal protections in probate. If Ohio’s spousal protections apply, the spouse can take those statutory amounts even if the will disinherits them.
• Hypothetical C — Divorce decree was final before death: A final divorce usually eliminates the former spouse’s right to inherit and typically revokes testamentary gifts to that former spouse. The ex-spouse is often treated as predeceased for purposes of wills and intestacy (absent language or circumstances that say otherwise).
• Hypothetical D — Legal separation or separation agreement in place: A separation agreement may include a valid waiver of inheritance rights. If the surviving spouse signed a lawful agreement that explicitly waived probate rights, a court may enforce the waiver. Whether a specific separation agreement is enforceable depends on its form and the court’s findings.

What an executor, personal representative, or surviving family member should do

1. Confirm marital status. Obtain a certified copy of the death certificate and review the court docket where divorce proceedings were filed to confirm whether a final decree exists.
2. Check for a will and beneficiary designations. If a will exists, read it and note whether the spouse is named. Also check life insurance, retirement accounts, and payable-on-death designations.
3. Look for written waivers. Determine whether the estranged spouse signed a valid waiver or settlement agreement that addresses inheritance or probate rights.
4. Open probate promptly. The personal representative must follow probate procedures in the local probate court. The court may need to resolve disputes about marital status and probate claims.
5. Seek legal counsel early. A probate attorney or an attorney experienced in family law and probate can advise on spousal allowances, intestacy claims, will interpretation, and how a pending or finalized divorce affects rights.

Statute references and where to look

Useful Ohio statutory resources (general chapters):

• Intestate succession and distribution rules: Ohio Rev. Code Chapter 2105 — https://codes.ohio.gov/ohio-revised-code/chapter/2105
• Wills and probate provisions (including how testamentary gifts can be affected by family status): Ohio Rev. Code Chapter 2107 — https://codes.ohio.gov/ohio-revised-code/chapter/2107

If you need the exact statutory subsection that governs a specific issue (for example, a spouse’s family allowance, homestead allowance, or revocation of testamentary provisions by divorce), a probate attorney can point to the precise provisions in Chapters 2105 and 2107 that apply to your facts.

Helpful hints — what to do next

• Do not assume separation alone ends inheritance rights. Only a final divorce decree or a signed, enforceable waiver will usually cut off statutory spousal rights.
• Gather documents: death certificate, marriage certificate, any divorce filings, the will (if any), beneficiary forms, and any separation agreements.
• Check the probate docket where the deceased lived — many disputes get resolved there. The local county probate court can confirm whether probate has been opened and what filings exist.
• Contact a probate lawyer quickly if you are an executor or a family member. Time limits and procedural requirements apply in probate that can affect claims.
• If you are the estranged spouse, consider whether you want to claim statutory allowances or an elective share — an attorney can explain trade-offs and likely outcomes.
• If a divorce was very near final (e.g., all terms agreed and only ministerial steps remained), bring the divorce court file to the probate attorney’s attention. Courts sometimes examine the precise status of the divorce proceeding when resolving disputes.