By creating a will, a person gets to decide what will happen to their estate when they pass away. So, if a will is never created, who decides the fate of the deceased’s estate? In Florida, the answer to that question is the state of Florida. Passing without a will is known as dying “intestate”. The state of Florida has a set of intestate succession laws that determine where the deceased’s assets will go after their death when they pass without a valid will.
What is Intestate Succession?
A deceased Florida resident’s estate can be distributed a few different ways, depending on their living relatives. First in line to inherit the estate are the spouse and/or descendants of the deceased. Those who classify as descendants are children, grandchildren, great-grandchildren, etc. Listed below are the scenarios of how an estate may be distributed when one is survived by a spouse and/or descendants. If the deceased is survived by:
- A spouse and no descendants, then 100% of the estate will go to the spouse.
- A spouse and descendants who also belong to the spouse, and the spouse has no other descendants who belong to someone other than the deceased, then 100% of the estate will go to the spouse. Except with respect to homestead property where the spouse may end up with a life estate and vested remainder in the descendants in existence at the time of decedent’s death per stirpes. Stat. 732.401 (2021)
- A spouse and one or more descendants that do not also belong to the spouse, then 50% of the estate will go to the spouse and the remainder will be divided among each descendant, per stirpes.
- A spouse and descendants, and the spouse has descendants that do not also belong to the deceased, then 50% of the estate will go to the spouse and the remainder will be divided among the deceased’s descendants, per stirpes.
- Descendants and no spouse, the estate will be divided among the descendants, per stirpes.
What about when there is no spouse or descendants
If there is no surviving spouse or descendants, the deceased’s parents are next in line to inherit their estate. Each living parent would be entitled to an equal share of the estate. However, if only one parent is living, the living parent is entitled to 100% of the estate.
If there are no surviving parents, next in line to inherit the estate would be the deceased’s brother and sisters, or their descendants. The estate would be divided among the siblings and their descendants, per stirpes.
If there are no living siblings or sibling’s descendants, 50% of the estate would go to the maternal grandparents (deceased’s mother’s parents), or the survivor of them, and 50% would go to the paternal grandparents (deceased’s father’s parents), or the survivor of them.
If either no paternal or no maternal grandparents are living, their portion of the estate would pass to their descendants, per stirpes.
If either no paternal descendants or no maternal descendants are living, the entire estate would pass to the side with living members.
If there are no living paternal or maternal family members, 100% of the estate will pass to the deceased’s last deceased spouse. The deceased spouse will be treated as if they survived the deceased, and the estate will be distributed to their descendants, per stirpes.
What if there are no eligible relatives?
If the deceased has no spouse, descendants, living members of their paternal or maternal family, or spouse’s descendants, the last in line to receive the estate would be the state of Florida. This is known as the estate “escheating” to the state. If the deceased’s estate escheats, the state of Florida will sell the estate and the proceeds will be paid to the Chief Financial Officer of the state and deposited in the State School Fund.
In addition to this, most counties require every intestate estate to file an affidavit of heirs. It can be a real pain to have to find all the evidence of familial relationships while grieving the loss of a loved one.
Dying without a will means having no say in who gets your assets upon your death; your estate will instead be distributed in the order decided by Florida’s intestate succession laws, as listed above. If you have questions about intestate distribution in Florida or creating a will, please contact us today.
Written by Alison Koukoulis and edited by Patrick D. Quarles