Short answer

Under West Virginia law, if a person dies before a divorce is final, the surviving spouse is still legally the spouse. That means the estranged spouse typically retains the legal rights of a surviving spouse—inheritance under intestacy rules, certain statutory allowances, and standing to challenge or benefit from the decedent’s will—unless some other legal document (for example, a valid waiver or a binding separation agreement) or court order limits those rights.

How this works under West Virginia law

Marriage ends only when the court enters a final divorce decree. While a divorce petition or trial separation may show a couple’s intent to end the marriage, West Virginia treats the parties as married until the court issues a final order. For materials and the statutory framework governing decedents’ estates and family law, see West Virginia Code, Title 42 (Decedents’ Estates) and Title 48 (Domestic Relations):

• W. Va. Code — Title 42: Decedents’ Estates
• W. Va. Code — Title 48: Domestic Relations

Key practical consequences:

• Intestate succession: If the decedent left no valid will, the surviving spouse generally inherits under the state’s intestacy rules. Those rules are in the decedent-estates provisions cited above.
• Wills and beneficiary designations: If the decedent had a will that left property to the spouse, that gift usually stands if the couple remains married at death. (Some states automatically revoke spouse gifts after final divorce—because the divorce was not final, that automatic revocation would not occur in this situation.)
• Statutory allowances and protections: A surviving spouse may be entitled to an allowance from the estate, exempt property, or other relief intended to prevent destitution. Executors must honor those claims unless state law or a binding waiver prevents them.
• Standing to contest: The spouse who is still legally married at death has the right to participate in probate proceedings, file claims against the estate, and challenge the will’s validity or the executor’s actions.

When an estranged spouse may be prevented from inheriting

Even though the marriage continues until a final divorce, several situations can limit or eliminate the estranged spouse’s inheritance rights:

• Signed waivers or separation agreements: If the spouses entered a valid, enforceable written agreement (for example, a property settlement or waiver of inheritance rights) that was effective before death, a court may enforce that agreement and bar the spouse from certain claims.
• Prior release of rights: If the surviving spouse previously signed a legally valid release of claims against the decedent’s estate, that release can limit recovery.
• Spousal capacity or fraud issues: Courts can refuse to enforce documents or awards obtained by fraud, undue influence, or when the spouse lacked legal capacity when signing.
• Pending-but-unfinished legal steps: Some protective orders or temporary court orders may affect who controls property during probate, but they do not terminate the marriage until the divorce judgment is entered.

Hypothetical example

Jane and Tom separated and Jane filed for divorce. They never completed the divorce before Tom died. Tom left a will naming Jane as his beneficiary. Because the divorce was not finalized, Jane remains his legal spouse at death. Under West Virginia probate law she can present the will in probate, claim statutory allowances for a surviving spouse, and inherit under the will unless a valid prior agreement or statute prevents it. If Tom’s adult children from a prior marriage believe Jane should not receive the estate, they must challenge the will or assert whatever defenses the law permits—but Jane’s status as spouse gives her clear legal standing in probate.

What steps should each party take?

If you are the estranged spouse

• Confirm the status: Obtain a certified copy of the decedent’s death certificate and the court file for any pending divorce to confirm whether a final decree exists.
• Open probate or contact the personal representative: If an executor is appointed, contact them quickly to assert spousal rights and request information about the estate.
• Preserve evidence: Keep any separation agreements, waivers, or proof of the parties’ intentions, because those documents can affect entitlement.
• Seek counsel: Talk to a probate or family law attorney who can explain your likely statutory shares, allowances, and deadlines for filing claims.

If you are the executor, heir, or another interested person

• Don’t distribute estate assets prematurely: If a spouse might have legal claims, wait for probate processes to finish or obtain court guidance.
• Check for waivers or agreements: Review any written documents that might modify spousal rights before distribution.
• File an inventory and notify heirs: Follow West Virginia probate procedures and give legally required notices so interested parties can assert rights or contest matters.
• Get legal advice: Executors can face personal liability for improper distributions. An attorney can help you follow rules and timelines.

Timing and deadlines

Probate and claims against an estate are subject to strict deadlines. If you think you have a right to a share, do not delay. Contact the probate clerk’s office for filing rules and consult an attorney to protect your rights before time limits expire.

Helpful hints

• Assume the marriage continued until a final decree. A filed but unfinished divorce generally does not remove spousal inheritance rights.
• Search for written waivers, separation agreements, prenuptial agreements, or court orders; these documents can change outcomes.
• Identify the personal representative of the estate early and request the decedent’s will and an inventory of assets.
• Don’t let informal promises substitute for formal probate actions. Courts resolve disputes by law and written records, not by what parties orally expected.
• Get a West Virginia probate attorney involved when claims or disputes arise—both executors and spouses face legal risks if they act without counsel.
• Use the West Virginia Legislature’s code pages to review the statutory framework: Title 42 (Decedents’ Estates) and Title 48 (Domestic Relations).