You’ve probably heard the word “heir” frequently. Whether it’s the “heir to the Hilton fortune” or what role the “heir apparent” would have in the recent royal wedding. The word often accompanied by modifiers to precisely describe what type of heir. In this post, we will talk specifically about what an “heir” is in Florida. And because sometimes the difference between an heir and a descendant can mean the difference between devising your homestead outside the reach of creditors or not, we will discuss what a lineal descendant is too.
The dictionary definition of “heir” is a good place to start. According to Merriam-Webster, heir is defined as: one who receives property from an ancestor: one who is entitled to inherit property. This is a fairly good definition. With some context, this is a good definition. Black’s Law Dictionary gives a little more specificity: “A person who, under the laws of intestacy, is entitled to receive an intestate decedent’s property.” (that definition is from my beloved Third Pocket Edition that I used in law school but keep around for fun. I would put the link to the Black’s Law Dictionary I also used, but that requires a Westlaw subscription, so I’ll skip it.)
The key difference in these definitions is that in the legal dictionary an heir is someone who is entitled to receive property under the laws of intestacy. This is almost exactly how “heir” is defined under the Florida Probate Code. In Florida an heir is specifically defined under the statutes. Florida Statute 732.201 (20) tells us that “‘Heirs’ or ‘heirs at law’ means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.” (2018).
A spouse is an heir. The shares of other heirs is explained in Fla. Stat. 732.103 (2018). It’s a confusing statute, but if you treat it like a flow chart checking at each step if there is someone who fits that description it is pretty easy to work through.
The term “Descendant” is far less common in the vernacular. As probate and estate planning attorneys it is our job to make sure the correct word is used, even if the difference may seem like it doesn’t matter to most people. Merriam-Webster defines “Descendant” as: proceeding from an ancestor or source. My Third Pocket Edition of Black’s Law Dictionary gives a more specific definition: “One who follows in lineage, in direct (not collateral) descent from a person. Examples are children and grandchildren.”
Florida Statutes 731.201 (9) defines a descendant as: “a person in any generational level down the applicable individual’s descending line and includes children, grandchildren, and more remote descendants. The term “descendant” is synonymous with the terms “lineal descendant” and “issue” but excludes collateral heirs.”
A collateral heir is someone related to the decedent through a common ancestor but is who is not an ancestor or descendant of the decedent.” Collateral Heirs are brothers, sisters, cousins, nieces, nephews, etc.
To summarize, an heir is determined based on a person’s right to receive property from a decedent; while a descendant is determined based on the familial relationship to the a decedent. You can be an heir, a descendant, both or neither. It really depends on who is living when someone dies, and if the decedent owns property.
How Does This Matter to My Estate Plan or My Loved One’s Probate Estate?
In previous posts we have discussed the Florida Homestead Exemption applicable to real property and the Statutory Exemption for personal property. These two exemptions are not only limited by the size of the real property or the weight of the vehicles. The Florida Homestead creditor exemption passes to the surviving spouse or heirs of the owner of the property. Fla. Const. art. X, §4 (b). While some personal property is also exempt under this article of the Florida Constitution, it is not very much.
The real meat and potatoes of personal property exemptions are found in Florida Statutes 732.402. Up to $20,000 in furniture, furnishings, and appliances in the decedent’s usual place of abode up to a net value of $20,000, Two motor vehicles not exceeding 15,000 lbs gross vehicle weight each, qualified tuition programs, and certain benefits.
This is where it is crucial to understand the nuance of heirs and descendants. The statutory limitations only apply to a surviving spouse or children of the decedent. If someone tries to leave this type of exempt property to their grandchildren, creditors may be able to reach these assets to satisfy their claims. Even if this type of property is in an estate, if the petitioner or personal representative doesn’t ask the court to make a determination that these exemptions apply the protection can be lost.
In all matters of estate planning and probate you should consult a licensed Florida probate attorney or estate planning attorney. At Richert Quarles P.A. we have attorneys experienced in these areas. If you are considering creating an estate plan, or have recently lost a loved one, you should contact us to set up a free consultation.
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