In Florida probate terms, dying without a last will and testament is known as dying “intestate”. Most people assume that, if they die without a will in place, their next of kin or heirs will inherit their estate. While this is true, the important thing to remember is that Florida Statutes determine who your heirs are at the time of your death. Let’s talk about who your heirs are according to Florida law, and what kind of effect that can have on your probate estate upon your death.
What Assets Pass by Intestacy?
Before we get into the weeds on this subject, it’s important to remember that even if a person dies intestate, not every asset passes according to the intestate statutes. If the asset does not go through your will, it is not affected by the intestate statutes. Examples include:
- Property transferred into a living trust
- Funds in an account with a named pay-on-death beneficiary, such as an IRA, 401(k), securities or even a regular checking or savings account
- Life insurance proceeds
- Assets jointly owned with someone else either in joint tenancy or tenancy by the entirety
The above assets automatically pass to named beneficiaries or joint owners, regardless of whether or not the deceased person has a will.
Surviving Spouses With or Without Children
When an intestate estate is probated in Florida, the courts follow the rules of intestate succession found in section 732.103, Florida Statutes. This law determines who the heirs of a deceased person (otherwise known as the decedent) are in an intestate estate. If the decedent was survived by a spouse and not by any children, then the surviving spouse receives 100% of the decedent’s estate. If the decedent was survived by both a spouse and children, it depends on who the childrens’ parents are: if the decedent and the surviving spouse were the parents of all the surviving children, then the surviving spouse still gets 100% of the estate. However, if the decedent and the surviving spouse were not the parents of all the surviving children, then the surviving spouse receives 50% of the estate and the other 50% is split equally between all the surviving children. As an example of how this all works, let’s look at the example of Amanda and Bill:
- Amanda and Bill are married. Neither have any children, either together or from prior relationships. Bill dies intestate (without a will). As the surviving spouse and with no children involved, Amanda is considered the sole next of kin, and is the 100% beneficiary of Bill’s estate.
- Amanda and Bill are married. They have one child together, Caroline. Bill dies intestate, and is survived by Amanda and Caroline. Because Caroline is the child of Amanda and Bill, Amanda is still considered the sole next of kin and 100% beneficiary of the estate.
- Amanda and Bill are married. They have one child together, Caroline. Bill also has a child from a previous marriage, David. Bill dies intestate, and is survived by Amanda, Caroline and David. Because Bill is survived by his spouse Amanda, his daughter Caroline and at least one child is not the child of him and Amanda (David), then Amanda receives 50% of the estate and the remaining 50% is split equally between all the children (meaning that Caroline and David will receive 25% each).
- Amanda and Bill are married. They have one child together, Caroline. Amanda has a child from a previous marriage, Eric. Bill dies intestate and is survived by Amanda and Caroline. Because Bill is survived by his spouse Amanda, daughter Caroline and his surviving spouse’s child Eric, then Amanda receives 50% of the estate and the remaining 50% goes to Bill’s child, Caroline. Eric receives nothing, as he is Amanda’s child and is not related to Bill.
No Surviving Spouse
If a decedent is not survived by a spouse, the intestate statute mandates that the decedent’s estate passes as follows:
- To the descendants of the decedent.
- If there is no descendant, then to the decedent’s father and mother equally, or to the survivor of them.
- If there is none of the forgoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.
- If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order:
- To the grandfather and grandmother equally, or to the survivor of them.
- If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
- If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
- If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.
Other Next of Kin
Other common family situations that come up when discussing intestacy in Florida:
- Adopted children: legally adopted children are considered no different than biological children when it comes to the intestacy statutes. In other words, if you have legally adopted a child, then they are treated as your biological child when it comes to determining your intestate estate. Adoption also cuts all legal ties with the child’s biological parents, so the child cannot inherit a portion of their biological parents’ estates after the adoption is finalized.
- Half children: when both whole blood and half blood next of kin stand to inherit under Florida’s intestacy rules, the half blood kin inherit half as much as the whole blood kin. However, if all the next of kin are half blood, then they inherit as much as if they were whole blood.
- Posthumous relatives: relatives conceived before, but born after, a person dies inherit as if they had been born while the person was still alive.
- US citizenship: relatives who are entitled to an intestate share a decedent’s property will inherit whether or not they are citizens of the United States.
- Foster children: foster children who were not legally adopted by a decedent prior to the decedent’s death are not entitled to receive an inheritance.
Next of Kin Law in Florida: Will the Estate Get My Property?
If you die without and will and are not survived by any family, your estate will “escheat” into the state’s funds. However, this is incredibly unlikely to happen, as the intestate laws are designed to get your estate to anyone who is even remotely related. Even distant cousins can wind up inheriting your estate, if they are the only relatives you have left. Bottom line: the state only gets your property if you are literally not survived by any relatives.
Unsurprisingly, many people assume that if they are married at the time of their death, then their spouse will be considered the sole heir and receive the entire estate. As you can see with Amanda and Bill, this isn’t always the case, depending on if there are surviving children and who those children’s parents are. This is why good estate planning is so important: with a proper estate plan, you can make sure your estate is left exactly how you want it after your death, instead of leaving that decision up to lawmakers in Tallahassee. If you would like to discuss your own estate plan and ensure things are done how you want them to be instead of how the state wants them to be, please call us and we would be happy to schedule an appointment with you.