You moved out three years ago.
You have separate homes, separate bank accounts and separate lives.
Perhaps one of you has even started another relationship.
Your friends know the marriage is over. Your children know. Your families know.
But legally, one important fact may not have changed.
And if you die while separated but not divorced, that can have consequences that many people never expect.
“But We Haven't Been Together for Years”
This is where the law and everyday life can feel very different.
A couple may have lived apart for five, ten or even twenty years and consider their relationship completely finished.
But ordinary separation does not by itself end a marriage in England and Wales.
Until the marriage is legally brought to an end, usually by a final divorce order, your husband or wife remains your spouse.
That matters when it comes to your Will and what happens to your estate when you die.
Can My Separated Spouse Inherit If I Die Without a Will?
In many cases, yes.
If you die without a valid Will, you die “intestate”.
That means you do not get to choose how your estate is divided. Instead, the intestacy rules decide who receives it.
If you are still legally married and have no children or other descendants, your surviving spouse or civil partner will generally inherit the estate.
If you leave children or other descendants and your estate is above the statutory amount, the position is different.
Under the current rules in England and Wales, the surviving spouse or civil partner receives personal chattels, the first £322,000 of the estate and half of the remaining balance. The other half of that balance passes to the children or their descendants.
Being emotionally separated does not automatically remove a spouse from those rules.
That can produce a result very different from what the person who died actually wanted.
Imagine This Situation
David and Sarah separated six years ago.
They never completed their divorce.
David later began living with Emma.
Emma and David built a life together. They shared household costs, went on holidays together and spoke openly about their future.
David always assumed Emma would be looked after if anything happened to him.
But David never made a new Will.
When he dies unexpectedly, the law does not simply ask:
“Who was he living with?”
It first looks at his legal position.
Sarah is still his wife.
Emma is his unmarried partner.
That distinction can matter enormously.
Under the current law in England and Wales, an unmarried cohabiting partner does not automatically inherit under the intestacy rules, regardless of how long the couple lived together. The Government consulted during 2026 on possible reforms to cohabitation and intestacy law, but those proposals are not yet the current law.
That is why relying on what everyone “knows you wanted” can be dangerous.
What If I Already Have a Will?
This is another area where people can easily make assumptions.
Suppose you made a Will while you were happily married and left most or all of your estate to your spouse.
Years later you separate.
You move out.
Your finances are divided informally.
You stop speaking.
But you never change the Will.
Simply separating does not automatically delete your spouse from that Will.
The legal effect changes when the marriage is formally dissolved. Under section 18A of the Wills Act 1837, following divorce or annulment, provisions appointing the former spouse as executor or trustee and gifts to the former spouse generally take effect as though that former spouse had died on the date the marriage was dissolved, unless the Will shows a contrary intention.
This is one reason a Will should be reviewed during separation, not only after everything has finally been completed.
“We Are Separated. Surely That Is Enough?”
For many couples, separation feels like the real end of the relationship.
Legally, however, living apart and being divorced are not the same thing.
There is also a separate legal process known as judicial separation. A judicial separation order can affect intestacy differently. Where such an order is in force and the separation is continuing, the law can treat the other spouse as having died first for intestacy purposes.
That is quite different from simply moving into separate homes.
If you are unsure which legal position applies to you, it is worth getting advice rather than assuming.
What If I Have a New Partner?
This is where the consequences can become particularly painful.
You may have lived with your new partner for years.
They may have helped pay the mortgage.
You may share bills.
You may have children together.
You may regard each other as husband and wife in every way that matters personally.
But if you are not married or in a civil partnership, your new partner currently has no automatic entitlement under the intestacy rules simply because you lived together.
The Government's 2026 consultation recognised exactly this problem. It noted that more than 3.5 million couples live together without marrying or entering a civil partnership and proposed possible reforms to inheritance rights for qualifying cohabitants. Those proposals would require legislation before becoming law.
Until the law actually changes, making a valid Will remains especially important for unmarried couples.
Separation Is Already Emotional Enough
Most people do not separate while calmly thinking about succession law.
You may be trying to find somewhere new to live.
You may be worried about your children.
You may be trying to work out the mortgage.
There may be anger, sadness, relief, uncertainty or simply exhaustion.
Updating a Will can easily fall to the bottom of the list.
But imagine your children or new partner having to work out your intentions after you are gone.
They cannot call you and ask.
They cannot say:
“Surely this isn't what Mum meant.”
They have to deal with the legal arrangements you actually left behind.
That is why estate planning during separation is not really about paperwork.
It is about making your intentions clear while you are still able to do so.
Should I Change My Will Before the Divorce Is Final?
You do not necessarily need to wait until the divorce has finished before reviewing your Will.
In fact, waiting can create the very risk you are trying to avoid.
A solicitor can look at your current Will, your family circumstances, your property arrangements and what you want to happen if you die while the divorce is still in progress.
Then, once the divorce is final, the Will can be reviewed again to make sure it still achieves what you intend.
Does Divorce Automatically Sort Everything Out?
No.
A final divorce order changes the legal status of the marriage, but it does not mean you should simply put your Will back in a drawer and forget about it.
Divorce can affect gifts and appointments involving a former spouse, which may change how the rest of an existing Will operates.
For example, if your former spouse was your main beneficiary, executor or trustee, you need to understand who takes their place.
This is why “the divorce is finished” and “my estate planning is finished” are not the same thing.
When Should You Review Your Will?
Separation is an important trigger.
So is divorce.
So is starting a new relationship.
So is buying a home with someone new.
So is having another child.
So is remarriage.
Your Will should reflect the family and circumstances you have today, not the life you were living ten years ago.
The Question Is Not Only “Do I Have a Will?”
The better question is:
If the answer is “I'm not sure”, that uncertainty is worth dealing with now.
At Lawfrancis Solicitors, we advise clients on separation and divorce as well as Wills, probate and estate planning.
If you are separated, going through a divorce, living with a new partner or simply unsure what would happen to your estate, we can help you understand your position and the steps available to you.
This article provides general information about the law in England and Wales and is not a substitute for legal advice about your individual circumstances.
