Many people assume their property will automatically go to their spouse or children if they pass away. While this is often the case, it’s not always so simple. When a Florida resident dies without a valid last will and testament, they are said to have died “intestate.”

In this situation, your wishes are unknown to the court. Instead of you deciding who inherits your assets, the State of Florida steps in and makes the decision for you. This process is governed by a set of default rules known as the Florida intestacy laws, found in Chapter 732 of the Florida Statutes.

Understanding what happens if you have no will in Florida is crucial, as the state’s plan may not align with your personal wishes.

What Assets Are Affected by Intestacy Laws?

It’s important to know that intestate succession laws only apply to probate assets. These are assets that were owned solely in the decedent’s name at the time of death and did not have a pre-named beneficiary or joint owner.

Many common assets are non-probate and pass outside of a will or intestacy rules. These typically include:

• Life insurance policies with a named beneficiary.
• Retirement accounts like 401(k)s or IRAs with a named beneficiary.
• Bank or brokerage accounts designated as “Payable on Death” (POD) or “Transfer on Death” (TOD).
• Property owned in joint tenancy with rights of survivorship (e.g., a home owned jointly by a married couple).
• Assets held in a living trust.

The intestacy laws only control the assets that would have been distributed by a will, had one existed.

The “Default Will”: Florida’s Order of Succession

If you die intestate, the probate court follows a strict statutory hierarchy to determine your legal heirs. This order is based on your family relationships.

1. If You Have a Surviving Spouse

This is the most common scenario, but the outcome is not always what people expect.

• Spouse and No Descendants: If you are married and have no children (or grandchildren, etc.), your surviving spouse inherits 100% of your intestate estate.
• Spouse and Shared Descendants: If you are married and all of your descendants (e.loc. children) are also the descendants of your surviving spouse (i.e., you have no children from a prior relationship), your spouse inherits 100% of the estate.
• Spouse and Descendants from Another Relationship: This is where it gets complex.
  • If you (the decedent) have one or more descendants who are not also descendants of your surviving spouse (e.g., a child from a previous marriage), your surviving spouse receives 50% of the estate, and your descendants split the remaining 50%.
  • If your surviving spouse has descendants who are not your descendants (i.e., a stepchild), your surviving spouse receives 50%, and your descendants split the remaining 50%.

2. If You Have No Surviving Spouse

If you are not married at the time of your death, the estate passes down your family tree in the following order:

• To Your Descendants: Your children will inherit the entire estate, divided equally.
  • If one of your children has already passed away but has their own children (your grandchildren), that deceased child’s share will pass down to their children. This is known as “per stirpes” distribution.
• To Your Parents: If you have no spouse and no descendants, your estate goes to your parents, divided equally. If only one parent is living, they inherit 100%.
• To Your Siblings: If you have no spouse, descendants, or living parents, your estate goes to your siblings (and the descendants of any deceased siblings, per stirpes).

3. If No Immediate Family Is Found

If the court cannot find a spouse, descendants, parents, or siblings (or their descendants), the law requires the search to widen. The estate is then split, with one-half going to the paternal side of your family (grandparents, then uncles/aunts, etc.) and one-half to the maternal side.

In the extremely rare event that no family members (heirs) of any kind can be located, the estate “escheats”—it goes to the State of Florida.

Special Considerations in Florida

Florida’s Homestead Law: Florida has strong constitutional protections for a primary residence (“homestead”). These laws are complex and often override the standard intestacy rules. For example, a surviving spouse is typically granted a “life estate” in the homestead (the right to live there for life), with the property passing to the decedent’s children upon the spouse’s death.

Appointing a Personal Representative: A will nominates an Executor (called a Personal Representative in Florida) to manage the estate. Without a will, the court appoints one. Florida law gives preference, starting with the surviving spouse, then to the person selected by a majority of the heirs. This can sometimes lead to family disagreements.

Take Control of Your Legacy

Florida’s intestacy laws are a “one-size-fits-all” solution that cannot account for your unique family dynamics, a child’s special needs, or your desire to leave assets to a close friend or charity. The only way to ensure your wishes are followed is by creating a valid Florida will.

Navigating an intestate estate (an estate without a will) can be legally complex. Our probate attorneys can help you petition the court, identify the legal heirs, and ensure the estate is administered correctly according to Florida law. Consult with our Probate Attorney >>>