Detailed Answer

Short answer: Under Georgia law, if a divorce is not legally finalized the couple remains married. That means the surviving spouse generally retains the legal rights of a spouse when the other dies and can make claims against the deceased’s estate through probate or other statutory remedies.

Why the legal status at death matters

Georgia treats marital status at the moment of death as controlling for estate rights. A court will look to whether a divorce judgment or other final order ended the marriage before death. If no final decree is entered, the parties are still legally married, even if separated, living apart, or in the middle of contested divorce proceedings. Because they are still married, the surviving spouse is entitled to the protections and claims the law gives a spouse.

What a surviving spouse can claim in Georgia

Common rights and remedies a surviving spouse may exercise in Georgia include:

Intestate succession: If the deceased did not leave a valid will, Georgia’s intestacy rules give the surviving spouse a statutory share of the decedent’s probate estate. (See Georgia Code, Title 53 — Property for the governing rules.) (Georgia Code: Title 53)
Elective share / family allowance / homestead: Georgia provides statutory protections to ensure a surviving spouse is not left destitute by a will or by assets that pass only through probate. These include allowances for support during administration, and homestead or exempt property rules that benefit the spouse. (Check the Georgia probate provisions and the local probate court.) (Georgia Courts — Probate resources)
Claims against probate assets: The spouse can file claims in probate to receive what the law or the will grants, challenge will provisions that unfairly disinherit a spouse, or petition for allowances.
Non-probate assets and beneficiary designations: Assets titled in joint names or with beneficiary designations (life insurance, retirement accounts, payable-on-death accounts) often pass outside probate to the named co-owner or beneficiary. Being legally married does not automatically alter those contract-based transfers unless the beneficiary designation itself was changed. It’s important to review beneficiary forms and account contracts.

Common scenarios and practical outcomes

No will (intestate): The estranged spouse will generally inherit according to Georgia’s intestacy rules because they remain the legal spouse.
There is a will that leaves the estate to someone else: A surviving spouse can often elect under statutory provisions or seek a family allowance/homestead to prevent being left without support. Probate rules let a spouse assert those rights in court.
Divorce was filed but not finalized: Filing for divorce does not end marital status. Pending paperwork does not eliminate spousal rights; the surviving spouse still may inherit or assert claims.
Beneficiary designated to spouse: If life insurance or retirement beneficiary is the spouse, those assets usually pass directly to that beneficiary regardless of separation, unless the plan says otherwise or the designation was changed.

Important exceptions and limits

There are situations that can limit or change a spouse’s ability to inherit:

Valid prenuptial or postnuptial agreements: A signed agreement can alter or eliminate the spouse’s claims.
Specific statutory disinheritance rules: Some actions (like a prior divorce that was later annulled or a spouse who is convicted of certain crimes) can affect rights. Georgia also has rules for how testamentary gifts to a former spouse are impacted by divorce—those rules depend on whether the divorce was final before death.
Non-probate designations: As noted, beneficiary designations and joint-tenancy ownership often bypass probate and will pass to the named beneficiary or joint owner even if a will says otherwise.

What to do if you are the surviving spouse or an interested person

Confirm the marriage status and check whether a final divorce decree was entered.
Locate a certified copy of the death certificate, any will, and the marriage certificate.
Contact the probate court in the county where the decedent lived to learn whether probate has been opened and how to file claims or petitions; Georgia probate courts handle administration and spousal allowances. (Georgia Courts)
Review beneficiary designations on insurance, retirement accounts, and bank accounts—these may pass outside probate.
Talk to a probate or family law attorney promptly. Statutes create deadlines for filing claims in probate; missing a deadline can forfeit rights.

Where to read the law

Primary Georgia statutory material governing property, wills, and succession is in the O.C.G.A., Title 53 (Property & Succession) and related probate provisions. You can search the official Georgia Code on the Georgia General Assembly website: https://www.legis.ga.gov/. For practical probate procedures and court contacts, see the Georgia Courts website: https://georgiacourts.gov/.

Helpful Hints

Even long separations without a final divorce do not strip marital rights; always assume marital status controls until a final decree is entered.
Collect and preserve documents: marriage certificate, any divorce filings, will, beneficiary forms, and account titles.
Check non-probate assets quickly—payable-on-death and beneficiary designations can move assets outside probate and are often time-sensitive.
If you are the surviving spouse, ask the probate clerk about “family/allowance” and homestead exemptions—these can provide immediate support during estate administration.
If you are an heir or creditor concerned about competing claims, seek an attorney early. Probate timelines and notice requirements are strict in Georgia.
Do not assume a separation agreement or pending divorce filing negates spousal rights unless there is a final court order or a binding marital agreement stating otherwise.

Disclaimer

This article explains general principles of Georgia law and is for educational purposes only. It does not create an attorney-client relationship and is not legal advice. For advice about a specific situation you should consult a licensed Georgia attorney.