What Is Intestacy in Florida?
When a person dies without a valid will, Florida law determines who receives that person’s property. This process is known as intestacy, and the rules governing it are called Florida’s intestate succession laws.
Many people assume that if they die without a will, their property will automatically go to their spouse or children. While that is often true, Florida law has very specific rules about who inherits and in what order.
Because these rules are rigid and do not consider individual family dynamics, dying intestate can sometimes produce results the deceased person never intended.
Florida intestacy laws are primarily found in Florida Statutes Chapter 732.
What Does “Intestate” Mean?
A person dies intestate when they pass away without a valid will.
This can occur in several situations:
The person never created a will
The will was invalid due to improper execution
The will was revoked
The will only disposed of part of the estate
When intestacy occurs, the estate must still go through probate, but instead of following a will, the probate court distributes the property according to Florida law.
Who Inherits Under Florida Intestacy Law?
Florida statutes establish a strict order of inheritance.
If the Decedent Has a Surviving Spouse
The surviving spouse may inherit the entire estate, depending on the family structure.
Under Florida Statute § 732.102:
The spouse inherits everything if:
The decedent had no descendants, or
All of the decedent’s descendants are also descendants of the surviving spouse.
The spouse receives one-half of the estate if:
The decedent has descendants from another relationship.
In that situation, the other half generally passes to the decedent’s children.
If There Is No Surviving Spouse
If the decedent is not survived by a spouse, the estate typically passes to the decedent’s descendants.
Under Florida Statute § 732.103, the order of inheritance is generally:
The decedent’s children and their descendants
The decedent’s parents
The decedent’s siblings and their descendants
The decedent’s grandparents
Aunts and uncles and their descendants
If no relatives can be found, the property may ultimately escheat to the State of Florida.
How Florida Distributes Property Among Children
When children inherit under intestacy, they typically receive equal shares.
Florida follows a system known as per stirpes distribution.
This means that if a child of the decedent has already died but left children of their own, those grandchildren will inherit their parent’s share.
For example:
A person dies leaving two children.
One child is alive.
The other child died earlier but left two children.
In that case:
The living child receives 50% of the estate.
The two grandchildren split the other 50%.
What Property Is Subject to Intestacy?
Not all property passes through intestacy.
Only probate assets are distributed under Florida’s intestate succession rules.
Examples of probate assets may include:
Property owned solely in the decedent’s name
Bank accounts without beneficiary designations
Vehicles or personal property titled solely to the decedent
Some property passes automatically outside of probate, including:
Jointly owned property with rights of survivorship
Payable-on-death bank accounts
Life insurance with named beneficiaries
Retirement accounts with beneficiary designations
Assets held in a revocable living trust
The Problems with Dying Without a Will
While Florida’s intestacy laws attempt to distribute property fairly, they are not designed for individual family circumstances.
Some common problems include:
Unintended Beneficiaries
Florida law may give property to relatives that the deceased person barely knew, while excluding friends, charities, or other loved ones.
Delays in Probate
Without a will, the court must appoint a personal representative, which can sometimes lead to disputes among family members.
No Control Over Guardians for Minor Children
If parents die without a will, the court decides who will serve as the guardian of their minor children.
Lack of Tax and Asset Protection Planning
A properly drafted estate plan can incorporate trusts and other strategies that are unavailable when someone dies intestate.
How to Avoid Intestacy
The simplest way to avoid intestacy is to create a valid estate plan.
A basic Florida estate plan often includes:
A Last Will and Testament
A Durable Power of Attorney
A Healthcare Surrogate Designation
A Living Will
In many cases, a Revocable Living Trust
Even a simple will can ensure that your property passes according to your wishes rather than a default statutory formula.
Speak with a Florida Estate Planning Attorney
Creating a comprehensive estate plan ensures that your property is distributed according to your wishes and can help avoid unnecessary disputes among family members.
If you need assistance preparing a will or updating your estate plan, the Burns Law Firm can help.