Wills, Trusts & Estates · Separation & Inheritance
Part of our wider Wills, Trusts & Estates services
Separated But Not Divorced: Secure Your Inheritance
Separation does not end your marriage in the eyes of the law. Until a Final Order is granted, your estranged spouse retains full inheritance rights — including the right to inherit your entire estate if you die without a will.
We help clients who are separated but not yet divorced to protect their estate quickly and effectively — new will, joint tenancy severance, pension nominations, and formal separation agreements. Chester-based, acting across Cheshire, North Wales and England and Wales.
No obligation — talk through your options first. Costs explained clearly.
Married
Until Final Order is granted — separation changes nothing legally
£322,000
Statutory legacy your estranged spouse inherits under intestacy
1975 Act
Inheritance Act allows estranged spouses to claim even if disinherited
5 Steps
Urgent actions to protect your estate from the moment you separate
Separation does not end your marriage — and the law does not protect you automatically
Under English and Welsh law, you remain legally married until a Final Order (formerly Decree Absolute) is granted by the court. During the entire separation period — however long it lasts — your estranged spouse retains the same inheritance rights as a happily married spouse. If you die without updating your will, your estranged spouse could inherit everything. If you die without a will at all, the intestacy rules place them at the top of the beneficiary list.
Legal separation vs divorce: what the law actually says
Many people assume that moving out, living apart, or even signing a formal separation agreement ends the legal ties of marriage. It does not. A separation agreement — however carefully drafted — does not dissolve the marriage. Only a Final Order from the Family Court does that.
Until that Final Order is granted, the law treats both parties as a married couple for all purposes — including inheritance. This means your estranged spouse has the same rights to your estate as they would have had on the day you married.
The distinction matters enormously. Divorce automatically revokes gifts to a former spouse in an existing will. Separation does not. The will you made when you were happily married — leaving everything to your spouse — remains fully valid throughout the separation period unless you actively change it.
Dying without a will while separated: the intestacy trap
The intestacy rules are rigid. They do not distinguish between a happily married couple and one that has been separated for years. If you die without a valid will while separated, your estranged spouse is placed at the top of the beneficiary list.
All personal belongings (chattels)
Jewellery, furniture, vehicles, personal effects — all pass to the estranged spouse
Statutory legacy of £322,000
A fixed tax-free sum paid to the surviving spouse before anything else is distributed
Half of all remaining assets
If the estate exceeds £322,000, the estranged spouse receives half of the surplus
The other half held on trust for children
Children receive the remaining half — but only if there are children. If not, the spouse takes everything.
Your children, parents, new partner, and anyone else you would wish to benefit receive nothing under the intestacy rules if your estranged spouse is still alive. Writing a new will immediately upon separation is not optional — it is essential.
Five urgent steps to protect your estate
There is no single document that protects your estate during separation. Multiple documents and registrations need to be updated. These are the five most important steps to take as soon as possible after separating.
Make a new will immediately
Revoke your existing will and make a new one that names the beneficiaries you actually want to benefit — children, new partner, family members, or charities. Appoint independent executors who are not your estranged spouse. Without a new will, your existing will (which may leave everything to your estranged spouse) remains fully valid.
Sever any joint tenancy
If you own property as joint tenants, your share passes automatically to the surviving co-owner on your death — regardless of what your will says. You must sever the joint tenancy to convert the ownership to tenants in common. Each party then owns a distinct share that can be left to chosen beneficiaries. Severance is done by serving a notice on the other joint tenant and registering it at HM Land Registry.
Update pension and death benefit nominations
Pension death benefit nominations are not affected by separation or divorce. If your estranged spouse is still named as your nominated beneficiary, the pension trustees will take that nomination into account when deciding who receives your pension on your death. Contact your pension provider, employer, and any personal pension schemes and update your nomination form.
Update life insurance beneficiaries
Life insurance policies pay out to the named beneficiary — not to the beneficiaries in your will. If your estranged spouse is still named, they will receive the payout. Contact your insurer and update the beneficiary nomination. If the policy is written in trust, you may need to update the trust deed.
Consider a formal separation agreement
A well-drafted separation agreement can include clauses in which both parties waive future inheritance claims against each other's estate. For maximum legal protection, the agreement should be sealed by the court as a financial consent order. A separation agreement combined with a new will is a highly effective method of protecting your assets during the separation period.
Can you completely disinherit an estranged spouse?
You can write a new will that leaves nothing to your estranged spouse. However, this is not always the end of the matter. The Inheritance (Provision for Family and Dependants) Act 1975 allows a surviving spouse — even an estranged one — to apply to the court for reasonable financial provision from your estate, regardless of what your will says.
The court will consider a range of factors when assessing such a claim, including the financial resources and needs of the applicant, the size of the estate, and the conduct of the parties. An estranged spouse who has been financially independent for many years and who has received a financial settlement in divorce proceedings is less likely to succeed than one who was financially dependent on the deceased.
How a financial consent order reduces the risk
If you obtain a financial consent order as part of your separation or divorce proceedings, the court will typically dismiss any future claims under the Inheritance Act 1975 as part of that order. This provides the strongest available protection against a posthumous claim by an estranged spouse. We work closely with our family law team to ensure that estate planning and financial proceedings are properly coordinated.
Joint tenancy severance: protecting the family home
Many couples own their home as joint tenants. Under the right of survivorship, the entire property passes automatically to the surviving co-owner on death — bypassing the will entirely. This means that even if you make a new will leaving your share of the home to your children, the right of survivorship will override it.
The solution is to sever the joint tenancy. This converts the ownership from joint tenancy to tenants in common, giving each party a distinct share (usually 50/50, but it can be any proportion) that they can leave to whoever they choose in their will. Severance is achieved by serving a written notice on the other joint tenant and registering it at HM Land Registry using Form SEV.
Joint tenancy (before severance)
- Both parties own 100% of the property together
- Right of survivorship applies automatically
- Property passes to surviving co-owner on death
- Will cannot override the right of survivorship
- Estranged spouse inherits your share regardless of your wishes
Tenants in common (after severance)
- Each party owns a distinct, separate share
- No right of survivorship
- Each party can leave their share to chosen beneficiaries
- Will governs what happens to your share
- Your share passes to your children or new partner as you direct
Probate: who controls your estate if you die without a will?
If you die without a will, your estranged spouse is entitled to apply to administer your estate as the next of kin. This gives them control over your bank accounts, property, and personal documents during the probate process — including the power to decide how quickly assets are distributed and to whom.
Appointing an independent executor in a new will is the most effective way to prevent this. Your executor could be a trusted family member, a close friend, or a professional (such as a solicitor). They will have the legal authority to administer your estate in accordance with your wishes, without any involvement from your estranged spouse.
Lasting Powers of Attorney during separation
If you made a Lasting Power of Attorney (LPA) before separating and named your estranged spouse as your attorney, that LPA remains valid throughout the separation period. If you lose mental capacity before the divorce is finalised, your estranged spouse could make decisions about your finances and health on your behalf.
Unlike a will, an LPA is not automatically revoked by divorce. You should revoke any existing LPA that names your estranged spouse and make new LPAs appointing trusted attorneys. We can help you do this quickly and efficiently.
The team advising clients who are separated but not divorced
Laura Kirton
Wills & Probate Solicitor · 10 Years Qualified
Separation Estate PlanningLaura regularly advises clients who are separated but not yet divorced on the urgent steps needed to protect their estate. She understands the sensitivity of this work and helps clients act quickly and clearly.
Darren Steele
Senior Private Client Executive · STEP Member
Estate PlanningDarren advises clients going through separation on the full range of estate planning issues — wills, trust arrangements, joint tenancy severance, and protecting assets from an estranged spouse.
David Stahler
Wills, Trusts & Estates Executive
Estate PlanningDavid is our first point of contact for clients enquiring about estate planning during separation. He brings a warm, practical approach to what can be a difficult and uncertain time.
Nikolina Vukovic
Legal Executive — Wills, Trusts & Estates
Wills & Estate AdministrationNikolina supports clients through the process of updating their wills and estate plans during separation — ensuring everything is in order before the divorce is finalised.
Frequently asked questions
Does separation automatically change my will?
No. Separation — whether informal or under a formal deed of separation — has no automatic effect on your will. Any gifts to your estranged spouse and any appointment of them as executor remain fully valid until you make a new will. Only a finalised divorce (a Final Order, formerly Decree Absolute) automatically revokes gifts to a former spouse under English and Welsh law.
What happens if I die without a will while separated?
If you die intestate (without a valid will) while separated but not divorced, your estranged spouse is treated as your surviving spouse under the intestacy rules. They would typically inherit all your personal belongings, the statutory legacy (currently £322,000), and potentially half of all remaining assets. Your children, parents, and new partner could receive nothing.
Can I completely disinherit my estranged spouse in a new will?
You can write a new will that leaves nothing to your estranged spouse. However, the Inheritance (Provision for Family and Dependants) Act 1975 allows a surviving spouse — even an estranged one — to apply to the court for reasonable financial provision from your estate. Complete disinheritance is therefore not guaranteed. The strength of any claim will depend on the circumstances, including whether a financial consent order has been obtained.
Does a separation agreement protect my estate?
A well-drafted separation agreement can include clauses in which both parties waive future inheritance claims against each other's estate. For maximum legal protection, the agreement should be sealed by the court as a financial consent order. A separation agreement combined with a new will is a highly effective method of protecting your assets during the separation period.
What happens to jointly owned property if I die while separated?
If you own property as joint tenants, your share passes automatically to the surviving co-owner — your estranged spouse — regardless of what your will says. To prevent this, you must sever the joint tenancy, converting the ownership to tenants in common. Each party then owns a distinct share that can be left to chosen beneficiaries in their will.
Do I need to update my pension nominations during separation?
Yes — and this is one of the most commonly overlooked steps. Pension death benefit nominations are not affected by separation or divorce. If your estranged spouse is still named as your nominated beneficiary, the pension trustees will take that nomination into account when deciding who receives your pension on your death. You should contact your pension provider and update your nomination as soon as possible.
Can my estranged spouse administer my estate if I die without a will?
Yes. If you die without a will, your estranged spouse is entitled to apply to administer your estate as the next of kin. This gives them control over your bank accounts, property, and personal documents during the probate process. Appointing an independent executor in a new will is the most effective way to prevent this.
Does a new partner have any inheritance rights if I die while separated?
An unmarried partner has no automatic inheritance rights under the intestacy rules, regardless of how long you have been together. If you die without a will while separated, your new partner would receive nothing. They may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if they were financially dependent on you, but this is not guaranteed. Making a new will is essential.
What about life insurance — does separation affect the payout?
Separation does not automatically change the beneficiary nominations on your life insurance policies. If your estranged spouse is still named as the beneficiary, the insurer will pay out to them on your death. You should contact your insurer and update your nomination as soon as possible after separation.
How quickly should I act after separating?
You should act immediately. There is no legal protection during the separation period — your estranged spouse retains full inheritance rights until the divorce is finalised. The five most urgent steps are: (1) make a new will; (2) sever any joint tenancy; (3) update pension nominations; (4) update life insurance beneficiaries; and (5) consider a formal separation agreement with mutual inheritance waiver clauses.
Related estate planning services
Wills
Professionally drafted wills to protect your estate during separation.
Tenants in Common vs Joint Tenants
Understanding joint tenancy severance and its importance during separation.
Separation Agreements
Formal separation agreements with mutual inheritance waiver clauses.
Inheritance Act Claims
How the Inheritance (Provision for Family and Dependants) Act 1975 works.
Lasting Power of Attorney
Revoke and replace LPAs that name your estranged spouse as attorney.
Recently Divorced
Estate planning steps once the divorce is finalised.
Related: Probate
Probate Solicitors
Grant of probate, estate administration and executor support.
Applying for Probate
How to apply for a grant of probate — step by step.
Full Estate Administration
We manage the entire process from asset valuation to final distribution.
Executor Advice
Practical guidance for executors — duties, liability and family disputes.
Do I Need Probate?
When probate is required and when it is not.
Probate Fees
Transparent pricing for probate and estate administration.
Related: Lasting Power of Attorney
Lasting Power of Attorney
Appoint someone you trust to manage your affairs if you lose capacity.
Types of LPA
Property & Financial Affairs vs Health & Welfare — which do you need?
Making an LPA
Step-by-step guide to making a lasting power of attorney.
LPA Costs
Solicitor fees, OPG registration fees and what affects the total cost.
Registering an LPA
How to register an LPA with the Office of the Public Guardian.
Court of Protection
If a loved one has lost capacity without an LPA, a Court of Protection order may be needed.
Act now — your estranged spouse has full inheritance rights until the divorce is finalised.
Speak to a specialist about protecting your estate during separation. Sensitive, confidential advice — costs explained clearly before any work begins.
No obligation — talk through your options first. Chester, Cheshire & North Wales.
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