Florida’s intestate succession laws are designed to determine what happens to assets owned by someone who does not have a will when they die.
This article will explain Florida’s intestate succession law in easy-to-understand terms.
What Is Intestate Succession?
If a deceased person didn’t have a will or a will that sufficiently covers all aspects of their estate, then a court will distribute the deceased person’s estate according to ‘Intestate Succession’ laws.
Intestate Succession will not apply to every asset/property owned at death; only those assets subject to intestacy rules—assets titled in just the deceased person’s name without a joint owner or designated beneficiary(ies) (hereafter “probate assets”).
Florida Statutes Chapter 732 covers Florida’s Intestate Succession laws in a long list, covering multiple scenarios.
What Happens if Someone Dies Without a Will in Florida?
If someone dies without a will in Florida, their probate assets will pass per the intestate succession laws.
As there is no named executor, state law provides a list of eligible people to administer the estate. If the probate process is necessary, someone will be selected from this list using the following order of priority:
- Surviving spouse
- Adult Children
- Close and trusted family members
A circuit court judge will preside over all probate proceedings.
Which Assets of an Estate Pass via Intestate Succession?
The only assets affected by Florida’s intestate succession laws are those that would usually pass through a deceased person’s will. These are usually assets you own under your own name and are not jointly held with someone else or beneficiary-designated. For example:
- Property such as your home and other real estate
- Cars, boats, campers, motorcycles and other vehicles
- Bank and brokerage accounts
- Life insurance policies (if there is no beneficiary named)
- Personal property, such as family heirlooms, clothes, books, furniture
- Art and collectibles
What Is Not Affected by Intestate Succession?
Many assets are not governed by intestate succession laws, even if the person dies without a will, including:
- Funds in retirement accounts such as IRA and 401(k)s for which a beneficiary(ies) have been designated
- Life insurance proceeds (if a beneficiary(ies) has been designated)
- Payable-on-death bank accounts
- Real estate owned in joint tenancy or tenancy by the entirety.
- Property transferred to a living trust during the life of the creator of the trust
- Securities held in a transfer-on-death account
Who Gets What as an Heir in Florida?
Intestate succession rules are governed by whether or not the deceased person has a living spouse, children, parents or other close relatives.
As a general rule, you can follow this guide:
(Note: Descendants include children, grand-children and great-grand-children.)
|Deceased Person’s Family Status:||Result:|
|Has children, but no spouse.||Children inherit the entire estate.|
|Has a spouse, but no descendants.||Spouse inherits the entire estate.|
|Has a spouse and descendants only with that spouse. Spouse has no other descendants.||Spouse inherits the entire estate.|
|Has a spouse and descendants with that spouse. And the deceased person also has descendants from another marriage/relationship.||Spouse inherits half the estate. Deceased person’s descendants inherit the other half.|
|Has a spouse but no descendants with that spouse. And the deceased person has other descendants from another marriage/relationship.||Spouse inherits half the estate. Deceased person’s descendants inherit the other half.|
|No spouse or living descendants, but has a surviving parent or parents.||Parent or parent inherits the entire estate.|
|No spouse, living descendants, or living parents, but has siblings.||Siblings (or descendants of deceased siblings [nieces and nephews]) inherit the entire estate.|
Will The State Get Property and Real Estate?
If someone dies in Florida without any close family (such as those listed above), then their estate will go half to their father’s side of the family and half to their mother’s side of the family (grandparents, uncles, aunts, cousins). If there is no living family of either parent, then the estate goes to the family of the deceased person’s last spouse.
Only in rare cases does the estate go to (escheat to) the state. In Florida, the law works to ensure an estate passes to anyone remotely close to the deceased person.
What Is the Spouse Share?
Florida’s intestate succession laws also accounts for a married person who dies without a will.
What happens next depends on whether the deceased person had living descendants, such as children, grandchildren or great-grandchildren.
If the individual had no living descendants, then the spouse will inherit all intestate assets and property.
If they do have living descendants, then you should refer to the table above.
Children’s Rights in Florida Intestate Succession Laws
Surviving children, regardless of whether they are an adult child or minor child, will receive an ‘intestate share’ of an estate in Florida if their parent dies without a will.
Many people ask whether their children qualify legally as descendants. Fla. Stat. Ann. § 732.108. defines the following scenarios:
Grandchildren will receive an intestate share only if:
- The grandchild’s parents are not alive.
Children legally adopted are entitled to an intestate share from their adoptive parents, just the same as a biological child.
Foster Children and Step-Children
Any children not legally adopted will not automatically receive an intestate share. For example, although your step-father may see you as his child, intestate laws require you to have been legally recognized as his child.
Children Placed for Adoption
Children legally adopted by another family will not receive an intestate share of their biological parent’s estate. For example, if you placed your child up for adoption when they were a baby and they were legally adopted by a family, then they are not entitled to receive an intestate share from your estate.
Children Born After Death
If a child was conceived by an individual, who later died before the child’s birth, then the child would still receive an intestate share.
Children Born Outside Marriage
A child born outside of marriage will receive an intestate share, if:
- The parents participated in a marriage ceremony that was void.
- A court establishes the parent’s paternity before or after death.
- The parent acknowledges their paternity in writing.
Can You Avoid Intestate Succession in Florida?
If you carefully and properly utilize estate planning, you can avoid intestate succession. Intestate succession is only required when someone doesn’t prepare a will, prepares an invalid will or an insufficient will.
Regardless of your age, it’s always recommended to have an estate plan. While there are other slightly more complicated steps you can take, such as setting up a revocable trust, preparing a will is essential for all.
Wills protect your loved ones from stressful tensions, confusion and drawn-out probate processes. They protect your wishes and your family’s health. No one can predict the future, but you can protect it.
If you have any concerns, confusions or doubts, then you can contact an estate planning attorney.
Contact a Florida Estate Planning Attorney Today
Battaglia, Ross, Dicus & McQuaid, P.A. is U.S. News and World Reports Tier 1 law firm in Florida, specializing in Estate Planning & Probate since 1958. With award-winning experienced estate planning attorneys, they can help you create a will to avoid complications for your family after your death.
Schedule a free consultation today to get started or to get any questions answered.