The Short Answer

Yes—if the divorce was not finalized before death, Florida generally treats the estranged spouse as a surviving spouse, which can trigger significant inheritance and probate rights. That can include rights under intestacy (if there is no valid will) and the right to claim an elective share even if the will leaves the spouse little or nothing.

What Florida Law Says

In Florida probate, the key issue is usually not whether the couple was separated or “in the middle of a divorce,” but whether there was a court order that actually dissolved the marriage before the decedent died. If the marriage was still legally intact at death, the surviving spouse may have powerful statutory rights against the estate.

The Statute

The primary law governing this issue is Fla. Stat. § 732.201.

This statute establishes that a surviving spouse of a person who dies domiciled in Florida has a right to an elective share of the decedent’s elective estate.

Also, Florida’s “divorce revocation” rules generally only kick in after a dissolution is entered. For example, will provisions benefiting a spouse are void upon dissolution—not merely because a divorce was filed. See Fla. Stat. § 732.507(2).

If there is no will, the surviving spouse may also inherit a large share (sometimes all) of the probate estate under Florida intestacy rules. See Fla. Stat. § 732.102.

Finally, even where a divorce was finalized, beneficiary designations (like life insurance and retirement accounts) may be treated differently than a will, and are governed by a separate revocation statute. See Fla. Stat. § 732.703.

For more background, you may also want to read: property rights if a spouse dies before divorce is finalized and how elective share claims work in Florida probate.

Why You Should Speak with an Attorney

While the statutes provide the general rule, applying them to an “estranged spouse” situation is rarely simple. Legal outcomes often depend on:

• Strict Deadlines: Elective share rights are time-sensitive and can be lost if not asserted properly (and they can also disrupt an estate plan if the personal representative is not prepared).
• Burden of Proof: Whether the spouse is legally a “surviving spouse,” whether there was a valid waiver, and what assets are reachable can turn on documents (marital settlement agreements, prenuptial/postnuptial agreements, beneficiary forms, and court orders).
• Exceptions: A written waiver or property settlement may waive spousal rights, but it must meet Florida’s requirements and be interpreted correctly. See, e.g., Fla. Stat. § 732.702.

When a divorce is pending, it is common for multiple people to believe they are entitled to the same assets (the spouse, children from a prior relationship, a new partner, or other family). Trying to handle this alone can lead to avoidable disputes, delays, and costly litigation.

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Disclaimer: This article provides general information under Florida law and does not create an attorney-client relationship. Laws change frequently. For legal advice specific to your situation, please consult with a licensed attorney.