Intestacy and Divorce UK: Does a Former Spouse Still Inherit?

The Intestacy Rules and Marital Status

When a person dies without a valid will in England and Wales, their estate passes under the statutory intestacy rules set out in the Administration of Estates Act 1925. Who inherits depends entirely on which relatives survive the deceased, and the rules use legal marital status — not emotional reality — as their foundation.

A surviving spouse or civil partner stands at the top of the intestacy hierarchy. Where there is a surviving spouse and children, the spouse receives:

• All personal chattels (household goods, vehicles, jewellery) absolutely.
• A statutory legacy of £322,000 (current figure, in force since July 2020), free of inheritance tax and costs.
• Half of anything remaining above £322,000, absolutely.

The other half of the residue passes to the children equally. Where there are no children, the spouse takes the entire estate. These are substantial rights — and whether a former partner retains them depends entirely on whether a divorce has been finalised.

Separation Does Not Affect Intestacy

This is the rule that catches people off guard: separation has no effect on intestacy. It does not matter whether the separation happened yesterday or fifteen years ago. It does not matter whether you have a formal separation agreement, a deed of separation, or separate financial arrangements. Until the court grants a final order of divorce, your estranged spouse remains your legal spouse — and retains every one of the intestacy rights described above.

The Administration of Estates Act 1925 refers simply to a “husband or wife” (extended to civil partners by the Civil Partnership Act 2004). Those terms have their ordinary legal meaning: the marriage subsists until the court dissolves it. An estrangement is not a dissolution.

When Divorce Takes Effect: The Final Order

Under the Divorce, Dissolution and Separation Act 2020, which came into force on 6 April 2022, the traditional two-stage process was restructured. The first stage is now the “conditional order” (previously decree nisi); the second is the “final order” (previously decree absolute). The marriage is legally dissolved when the final order is granted.

For intestacy purposes, the Administration of Estates Act treats a former spouse as having predeceased the deceased from the moment the final order is granted. They lose all intestacy rights. If the death occurs at any point before the final order — even after the conditional order — the marriage is still legally intact and the spouse retains full intestacy entitlement.

The practical implication is stark: a couple going through divorce proceedings who are separated and have already obtained a conditional order can still leave their entire estate to the other if they die before the final order is granted and have no will.

Divorce and an Existing Will

The effects of divorce on a will are governed by section 18A of the Wills Act 1837. When a final order is granted, any gift in a will to the former spouse, and any appointment of the former spouse as executor, trustee, or guardian, is treated as if the former spouse had died on the date of the final order. The gift lapses; it does not pass to the former spouse. The appointment fails; a replacement must be found.

Critically, divorce does not revoke the will as a whole. The rest of the will continues to operate. Substitute beneficiaries named in the will receive any gifts that fail. If there are no substitutes, the failed gifts fall into residue. If the will distributes the entire estate to the former spouse with no other provisions, it will effectively have the same result as dying intestate — but the will is technically still valid, just without operative gifts.

Effect on Jointly Owned Property

Intestacy rules and will provisions govern the estate — assets owned solely by the deceased that pass through the estate. They do not govern assets that pass outside the estate by survivorship.

If a couple owns their home as joint tenants, the deceased’s share passes automatically to the surviving co-owner by right of survivorship — regardless of any will, intestacy rules, or divorce proceedings. Even a final order of divorce does not sever a beneficial joint tenancy automatically. Severance requires a positive act: a written notice of severance served on the other joint tenant, or conduct treating the interest as divided (such as an application for an order under the Trusts of Land and Appointment of Trustees Act 1996).

Separating couples who own property together as joint tenants should act to sever the joint tenancy at the same time as taking legal advice about divorce — and should check how their home is held at the Land Registry before assuming survivorship will not apply.

What You Should Do

The interaction of divorce and intestacy creates a series of traps for the unprepared. The practical steps depend on where you are in the process:

• If you are separated but not yet divorced: Make a will immediately. Intestacy will leave everything to your separated spouse. A will lets you redirect your estate to whoever you choose — children, other family, a new partner, charities.
• If divorce proceedings are underway: Make or update your will now. Do not wait for the final order. If you die before it is granted, the intestacy rules apply as if the divorce never started.
• After the final order: Even though divorce automatically revokes gifts to your former spouse under an existing will, the rest of the will may not reflect your current intentions. Make a new will to ensure your estate goes where you want.
• Check jointly owned property: Verify how your home and other co-owned assets are held. Consider severing any joint tenancy if you do not want your share to pass automatically to your former spouse.

Frequently Asked Questions