If you are separated but not divorced, your husband, wife or civil partner can still inherit from you, because the law treats you as married until a final divorce order is made. Separation on its own, however long it has lasted, does not change what happens to your estate.
That surprises many people who have lived apart for years and think of the relationship as over. In England and Wales, the two things that decide who inherits are whether you have a valid will and whether you are still legally married on the day you die. A trial separation, moving out, or even a long informal split does not affect either of them. This guide explains what happens in each situation and the steps that can bring your estate back in line with your wishes. Figures are current as at August 2026 and are subject to change.
If you die without a will while separated
Where there is no valid will, the rules of intestacy decide who inherits, and a separated spouse or civil partner is still a "surviving spouse" under those rules until the divorce is final (gov.uk, dying without a will, as at August 2026, subject to change). What they receive depends on whether you leave children.
| Who survives you | What your separated spouse or civil partner receives under intestacy |
|---|---|
| Spouse and children | All personal possessions, a statutory legacy of £322,000, and half of anything above that. The children share the other half. |
| Spouse, no children | The whole estate. |
Source: gov.uk/inherits-someone-dies-without-will. The £322,000 statutory legacy has applied to deaths on or after 26 July 2023, as at August 2026, subject to change.
The length of the separation makes no difference. A spouse who moved out twenty years ago, but never divorced, inherits in exactly the same way as one you lived with until the end. A new partner you are not married to inherits nothing under intestacy, whatever that relationship, which is one of the more common reasons people write a will after separating.
If you already have a will while separated
A will made during the marriage usually still leaves your estate the way it was written, so gifts to a spouse you have since separated from remain valid. Separating from your husband, wife or civil partner does not revoke, cancel or rewrite your will. If that old will leaves everything to them, that is generally where your estate goes.
Only the end of the marriage changes this. Once a divorce is final, the law reads your will as if your former spouse had died on the date the marriage ended, so gifts to them fail and any appointment of them as executor stops taking effect (Wills Act 1837, section 18A, legislation.gov.uk). Until then, an out-of-date will can still send your estate to a spouse you have separated from. The rest of the will stays valid, which can leave a gap if you had expected that share to pass elsewhere. Later remarriage adds a further wrinkle, because a new marriage revokes most earlier wills automatically, so the document is worth reviewing at each stage.
Separation, judicial separation and divorce are not the same
Three different legal statuses often get grouped together as "splitting up", and they have very different effects on inheritance. Since April 2022 a divorce runs through a conditional order and then a final order; it is the final order that ends the marriage (gov.uk, get a divorce, as at August 2026, subject to change).
| Status | Effect on a will | Effect on intestacy |
|---|---|---|
| Informal separation (living apart, trial separation) | No effect. Gifts to the spouse stand. | No effect. The spouse still inherits. |
| Judicial separation order (a formal court order, without ending the marriage) | No effect on the will itself. | The estate is shared as if the other spouse had already died. |
| Divorce made final (final order) | The former spouse is treated as having died; gifts to them fail. | The former spouse is no longer a spouse and does not inherit. |
A judicial separation order changes the intestacy position because the estate devolves as if the other party had died (Matrimonial Causes Act 1973, section 18, legislation.gov.uk). It does not rewrite a will. A conditional order (formerly the decree nisi) does not end a marriage; only the final order does.
The practical point is that a formal judicial separation affects intestacy but not a will, while a full divorce affects both. Informal separation, the situation most people are in, affects neither. That is why so many estranged spouses remain in line to inherit.
Inheritance tax while you are still married
Being married also carries a tax consequence that continues through a separation. Assets passing between spouses or civil partners are generally free of inheritance tax under the spouse exemption, and that exemption applies while you remain legally married, even if you have lived apart for years (gov.uk/inheritance-tax, as at August 2026, subject to change). Unmarried partners do not have this exemption, so leaving assets to a new partner you are not married to could fall within the tax net once the estate exceeds the available thresholds.
The tax-free nil-rate band is £325,000 and, following the extension announced at Budget 2025, is frozen at that level for the tax years up to and including 2030 to 2031, that is until 5 April 2031 (gov.uk, Inheritance Tax thresholds, as at August 2026, subject to change). A separation can pull two competing pressures together: an estranged spouse who would still benefit from the spouse exemption, and a new partner who would not. Weighing those points is part of the reason people revisit their inheritance tax position when a relationship changes.
- A spouse or civil partner keeps their right to inherit until the divorce is final, whatever the length of the separation (gov.uk, as at August 2026, subject to change).
- With no will and children surviving, a separated spouse takes personal possessions, the first £322,000, and half the remainder (gov.uk, figure from 26 July 2023, subject to change).
- An old will still gifts to a separated spouse; only the final divorce order treats them as having died (Wills Act 1837, s.18A).
- The spouse exemption from inheritance tax applies while you are married (gov.uk, as at August 2026, subject to change).
What you can do after separating
Separation is a point at which many people bring their arrangements up to date, so they reflect the current situation rather than the one that existed when the documents were written. General steps that are commonly considered include the following.
- Make or update a will. A new will can redirect your estate away from a separated spouse and toward the people you now want to benefit. Our guide on how to write a will sets out what is involved.
- Review who holds power over your affairs. If your spouse is named under a lasting power of attorney, you may want to reconsider that appointment. The lasting power of attorney guide explains the two types and how registration works.
- Check beneficiary nominations. Pensions and some life policies pass under separate nominations, not under your will, so these are often reviewed alongside it.
- Consider the wider plan. A change in relationship touches wills, tax and future care, which is why it can help to look at estate planning as a whole rather than one document at a time.
The right course depends on your family circumstances, your assets and where you are in any separation or divorce, so these steps are usually looked at together rather than one document at a time.
Scotland and Northern Ireland
This guide describes the law of England and Wales. Scotland has its own succession law, including legal rights that can give a spouse and children a fixed share of the estate regardless of a will, and its own rules where couples have separated. Northern Ireland has a separate system that is broadly similar to England and Wales but not identical, including different intestacy figures. If your estate or your separation touches more than one jurisdiction, it can be worth taking advice in each.
Frequently asked questions
Does my spouse still inherit if we are separated but not divorced?
Yes. In England and Wales a husband, wife or civil partner keeps their right to inherit until the divorce is final. If you die without a will, they inherit under the intestacy rules; if you have an old will leaving assets to them, those gifts usually still stand (gov.uk, as at August 2026, subject to change).
How long do we have to be separated before it changes who inherits?
The length of an informal separation makes no difference at all. Whether you have lived apart for months or for decades, a spouse remains a spouse for inheritance purposes until a court makes the divorce final or a formal judicial separation order is in place (gov.uk, get a divorce, as at August 2026, subject to change).
Does a conditional order or decree nisi stop my spouse inheriting?
No. A conditional order, previously called a decree nisi, does not end a marriage. Only the final order does. Until the final order is made, a separated spouse still inherits under a will or under intestacy (gov.uk, get a divorce, as at August 2026, subject to change).
What happens to my will when the divorce is finalised?
Once the marriage ends, the law reads your will as if your former spouse had died on the date it ended, so gifts to them fail and any appointment of them as executor stops applying. The rest of the will stays valid, which can leave a gap, so a review is often sensible (Wills Act 1837, section 18A, legislation.gov.uk).
Can my new partner inherit if I am still married to someone else?
Not automatically. Under intestacy an unmarried partner inherits nothing, whatever the length of the relationship, and any old will may still favour your spouse. Leaving assets to a new partner generally means writing a new will, and their inheritance would not have the spouse exemption from inheritance tax (gov.uk/inheritance-tax, as at August 2026, subject to change).
Is a judicial separation the same as a divorce for inheritance?
No. A judicial separation is a formal court order that does not end the marriage. It changes the intestacy position, so the estate is shared as if the other spouse had already died, but it does not rewrite a will and does not amount to a divorce (Matrimonial Causes Act 1973, section 18, legislation.gov.uk).