Judicial separation intestacy effects - MCA 1973 s. 18
If you die intestate while judicially separated and the separation continues, your property devolves as if your spouse had died, under MCA 1973 s.18.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . If while a decree of judicial separation or judicial separation order is in force and the separation is continuing either of the parties to the marriage dies intestate as respects all or any of his or her real or personal property, the property as respects which he or she died intestate shall devolve as if the other party to the marriage had then been dead. Notwithstanding anything in section 2(1)(a) of the Matrimonial Proceedings (Magistrates’ Courts) Act 1960, a provision in force under an order made, or having effect as if made, under that section exempting one party to a marriage from the obligation to cohabit with the other shall not have effect as a decree of judicial separation for the purposes of subsection (2) above.
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
Section 18 of the Matrimonial Causes Act 1973 deals with what happens to your property if you die without a will (intestate) while you are judicially separated from your spouse. If the judicial separation order is still in force and you are still living apart, the law treats your spouse as if they had died before you. That means your estate passes to your next of kin (children, parents, siblings) as if your spouse were not alive to inherit.
The provision only applies while the separation continues. If you and your spouse reconcile and start living together again after the order, the condition is no longer met, and this rule does not apply. Also, a non‑cohabitation order made under the old Matrimonial Proceedings (Magistrates’ Courts) Act 1960 does not count as a decree of judicial separation for this purpose, even if the order exempted one spouse from the duty to live with the other.
When it applies
- A husband and wife are judicially separated; the husband dies intestate. His estate goes to his children, not to the wife.
- A wife dies intestate while judicially separated from her husband; her property passes to her parents, treating the husband as deceased.
- A couple obtains a judicial separation order but later reconciles and lives together again. The husband dies intestate. This section does not apply, so the wife inherits under normal intestacy rules.
- A couple is separated under a non‑cohabitation order from a magistrates' court (not a judicial separation). One spouse dies intestate. Section 18 does not treat the other spouse as dead; normal intestacy rules apply.
What this section does not say
- It does not apply if the separation has ended, e.g., the couple reconciles and lives together.
- It does not apply to property left by a will; only to intestate estates.
- A non‑cohabitation order from a magistrates' court does not have the same effect as a judicial separation for this section.
That's the law. Now let's settle your problem.
Say what is happening. A neutral mediator hears your side and the other party's, and walks you both to a written agreement. In the advanced settings you can ask for the decision to be reasoned on the Acts of Parliament that apply in England and Wales.
Or open a session directly and invite the other party.
We copy this text from the official publisher and re-check it against that source on every page load, but we cannot guarantee it is complete, current or free of error, and we accept no liability for any reliance on it. An amendment can take effect before a consolidation catches up. The publisher's own copy is linked below; where the two differ, it is the official one that counts.
This page reproduces the text of MCA 1973 s. 18 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.