Separated but not divorced means you are still legally married, so for inheritance your spouse is treated as your spouse until the marriage formally ends. In England and Wales the marriage ends only on the final order (which replaced the decree absolute for divorces started under the no-fault system from 6 April 2022), not when you move out and not on the conditional order.
Who inherits if I die without a will while separated?
If you die intestate while separated but not divorced, your spouse inherits under the rules of intestacy as though nothing had changed. Living apart, even for years, does not remove their entitlement. A new partner and any stepchildren receive nothing under those rules.
Where you leave a spouse and children, your spouse takes your personal possessions, a statutory legacy of £322,000, and half of the remainder; your children share the other half (gov.uk, IHTM12122, as at August 2026, subject to change). Where you leave a spouse and no children, your spouse takes everything. See how much you can inherit tax free.
Does my separated spouse still inherit under my old will?
Yes. A will made before or during the marriage stays valid through separation, so any gift it leaves to your spouse still stands while you are separated but not divorced. Separation itself changes nothing in the document. If you no longer want your spouse to benefit, you must make a new will.
The position changes only when the divorce is finalised. On the final order, section 18A of the Wills Act 1837 treats your former spouse as having died on that date for the purposes of your will, so gifts to them fail and their appointment as executor lapses (legislation.gov.uk, as at August 2026, subject to change). The rest of the will still stands. Our guide to writing a will explains how to update it.
How does being separated affect Inheritance Tax?
While you are separated but still legally married, the spouse exemption still applies, so anything passing between you and your spouse is free of Inheritance Tax with no upper limit. That exemption is lost only when the marriage ends on the final order, because an ex-spouse is no longer a spouse for tax.
Each person also has a nil-rate band of £325,000, frozen until 5 April 2031, and tax above the available allowances is charged at 40% (gov.uk, as at August 2026, subject to change). Read more on how Inheritance Tax works.
Separation status and inheritance compared
Not every separation carries the same weight for inheritance. An informal separation, a judicial separation, a conditional order and a final order each affect who inherits differently, and only the final order ends the marriage. Until then, most of these leave your spouse's intestacy rights and any gift in your will intact, as the table below sets out.
| Legal status | Spouse inherits on intestacy? | Gift to spouse in your will? | IHT spouse exemption? |
|---|---|---|---|
| Informally separated (living apart) | Yes, in full | Yes, still valid | Yes |
| Judicial separation order | No (treated as if spouse had died for intestacy) | Yes, gift still valid | Yes, still married |
| Conditional order (was decree nisi) | Yes, still married | Yes, still valid | Yes |
| Final order (was decree absolute) | No, marriage has ended | No, gift fails under s.18A | No, no longer spouses |
Based on the Administration of Estates Act 1925, section 18A Wills Act 1837 and the gov.uk spouse exemption, as at August 2026, subject to change.
What people get wrong about separation and inheritance
Two beliefs cause the most avoidable problems. People assume that being separated, or having started the divorce, already protects their estate from an estranged spouse. The marriage is intact until the final order, and a will they never revisited still hands everything over.
The conditional order is not the finish line. A conditional order (formerly decree nisi) says the court sees no reason you cannot divorce, but it does not end the marriage. If you die between the conditional order and the final order, your spouse inherits exactly as if you had never started, and that gap can run for months.
A separation agreement does not redirect your estate. A separation or financial agreement can settle money between you while you are apart, but it does not rewrite intestacy or your will on death. Only a new will, and in due course the final order, changes who inherits.
What can I do to protect my estate while separated?
You cannot change your spouse's legal status until the divorce reaches its final order, but you can control what your own will and paperwork say. The steps below limit what an estranged spouse takes if you die before the marriage formally ends. Each one takes effect straight away, without waiting for the divorce to conclude.
- Make a new will now. A fresh will replaces any gift to your spouse and stops the intestacy rules deciding for you. It takes effect straight away, long before any divorce is final.
- Update your executors. If your spouse is named as executor, appoint someone else so they are not left running your estate.
- Check your pensions and life policies. Death benefits often pass by a nomination outside your will, so ask each provider to update the nominated beneficiary or your spouse may still receive them.
- Review jointly owned property. A home held as joint tenants passes automatically to the co-owner on death; severing the tenancy lets your share pass under your will instead.
- Take advice on an Inheritance Act claim. A separated spouse can still claim provision, so plan the whole estate rather than one document. See our pricing.