When someone passes away without a valid last will and testament, they are said to have died intestate. In the state of Florida, this does not mean your property is simply lost or seized by the government. Instead, the state’s intestate succession laws act as a default will, dictating exactly how your assets are distributed among your relatives.
While these laws are designed to be fair, they are rigid. They do not account for your personal relationships, charitable intentions, or the specific needs of your loved ones. Understanding how this process works in Florida is the first step toward realizing why a personalized estate plan is essential.
The legal definition of intestate succession
Intestate succession is the statutory process used to distribute the assets of a person who dies without a valid will. These laws act as a default estate plan written by the Florida legislature. While these laws aim to distribute property to the most logical heirs, they cannot account for the nuances of modern families, such as long term partners, stepchildren, or specific family dynamics.
When you die intestate, only your probate assets are affected. These are assets held in your individual name that do not have a designated beneficiary or a co-owner with rights of survivorship.
How intestate succession works in Florida
In Florida, the distribution of an intestate estate follows a strict hierarchy based on blood and marriage. The court focuses solely on your legal relatives, often ignoring long term partners, close friends, or unadopted stepchildren.
1. The surviving spouse
The rights of a surviving spouse in Florida are robust. However, the exact amount they inherit depends on whether there are surviving descendants (children, grandchildren, or great-grandchildren).
- No descendants: If you are married and have no children, your spouse inherits 100 percent of your intestate estate.
- Shared descendants only: If you and your spouse only have children together, and neither of you has children from other relationships, the spouse still inherits 100 percent.
- Blended families: If you have children from a previous relationship, or if your spouse has children from another relationship, the estate is split. The surviving spouse typically receives 50 percent, and your descendants share the remaining 50 percent.
If you are currently navigating the complexities of a blended family estate, a Florida probate attorney can help you understand these specific splits and how they apply to your situation.
2. Children and descendants
If you have no surviving spouse, your children inherit everything in equal shares. Under Florida law, children include biological children and those you have legally adopted. It does not automatically include:
- Stepchildren: Unless you legally adopted them, they have no right to inherit under Florida’s intestacy laws.
- Foster children: These children do not inherit through intestate succession.
- Grandchildren: They only inherit if their parent (your child) has already passed away.
3. Other relatives (The next of kin hierarchy)
If you die without a spouse or descendants, the law looks further up and out on your family tree:
- Parents: Your mother and father inherit equally, or the survivor takes the whole.
- Siblings: If your parents are deceased, your brothers and sisters (and their descendants, like nieces and nephews) inherit.
- Extended family: The search continues to grandparents, then aunts and uncles.
If no relatives can be found at all, which is a rare occurrence, the assets will escheat to the state, meaning the government takes ownership.
Assets that bypass intestacy
It is a common misconception that every single thing you own goes through this court ordered process. In reality, Florida law only applies intestate succession to probate assets, which are those held solely in your name without a designated beneficiary.
The following assets usually bypass the process and go directly to the named individual:
- Jointly owned property: If you own a home or bank account as joint tenants with right of survivorship, the survivor gets it automatically.
- Retirement accounts: 401(k)s and IRAs with named beneficiaries.
- Life insurance: Proceeds paid directly to the person listed on the policy.
- Trusts: Assets held in a living trust.
The risks of dying without a will
Relying on Florida’s default rules can lead to significant unintended outcomes that cause stress for your family during an already difficult time.
1. The blended family conflict
In Florida, the 50/50 split between a spouse and children from a prior marriage can be a recipe for disaster. If the main asset is the family home, the spouse and children may find themselves as co-owners of a property they cannot agree on whether to sell or keep. This often leads to partition lawsuits and permanent family rifts.
2. No protection for unmarried partners
Florida does not recognize common law marriage. No matter how many decades you have lived with a partner, if you are not legally married and do not have a will, they will inherit nothing from your probate estate. They could even be forced to move out of a home that was in your name alone.
3. The burden of probate
When you die intestate, the court must appoint a personal representative. Without a will to name your choice, family members may argue over who should take the role. This leads to:
- Public record: Every asset and debt becomes a matter of public record.
- Increased costs: Legal fees and court costs are often higher because the court must be more involved in verifying heirs.
- Delays: It can take months or even years for heirs to receive their inheritance.
For those currently in the middle of a court process, a Florida probate attorney can provide the necessary guidance to streamline the administration.
4. No say in who raises your children
Perhaps the most critical reason for a will is naming a guardian for minor children. If both parents pass away without a will, the court will decide who raises your children. While the court tries to act in the best interests of the child, their choice may not be the person you would have trusted most.
Florida homestead law and the surviving spouse
The primary residence, or homestead, is treated differently under Florida law. If you die without a will and have a surviving spouse and descendants, the spouse is generally entitled to a life estate in the home. This means they can live there for their lifetime, but the children eventually inherit the property.
Alternatively, the spouse can elect to take a 50 percent interest in the property as a tenant in common with the children. Navigating these elections requires strict adherence to legal deadlines.
Taking control of your legacy
A will is more than just a document; it is a gift of clarity to your family. By creating a valid Florida will, you can:
- Make specific bequests: Leave specific heirlooms or sums of money to friends, stepchildren, or charities.
- Choose your representative: Appoint someone you trust to handle your affairs.
- Protect your spouse: Ensure your spouse has the resources they need without having to negotiate with other heirs.
- Minimize conflict: Clearly outline your wishes to prevent family arguments.
Secure your family’s future today
If you are facing an intestate probate matter or want to avoid intestate succession through proper planning, we encourage you to take the next step. At Michael T. Heider, P.A., we assist you in accomplishing your estate planning and probate goals with personalized care and authority.
Contact our Clearwater, FL office today for a free initial phone consultation at 727-235-6005, or schedule a free consultation.
