Dying Without a Will in Florida: The State Decides
When someone dies without a valid will in Florida, they are said to have died "intestate." In this situation, the state of Florida decides who inherits their property. The distribution follows a rigid statutory formula found in Florida Statutes Chapter 732, and the result often surprises families.
Without a will, you have no control over who receives your assets, who serves as personal representative, or who becomes guardian of your minor children. The court makes all of these decisions based on Florida law.
Florida's Intestacy Rules: Who Inherits?
Florida's intestacy law distributes assets based on your surviving family members. Here are the most common scenarios:
Scenario 1: Survived by a Spouse, No Descendants
Result: The surviving spouse inherits the entire estate.
Scenario 2: Survived by a Spouse and Descendants (All Are Children of Both Spouses)
Result: The surviving spouse inherits the entire estate. For example, a married couple with two children together: the surviving spouse gets everything; the children inherit later through the surviving parent's estate.
Scenario 3: Survived by a Spouse and Descendants from a Prior Relationship
Result: The surviving spouse receives 50% of the estate. The decedent's descendants share the other 50%. This is the scenario that catches families off guard. If you have children from a previous marriage and remarry without a will, your new spouse and your children split your estate, potentially creating disputes.
Scenario 4: Survived by Descendants Only (No Spouse)
Result: The descendants inherit everything in equal shares. If a child predeceased the decedent but has their own children (the decedent's grandchildren), those grandchildren step into the deceased child's share.
Scenario 5: No Surviving Spouse or Descendants
Result: The estate passes to the next tier of relatives in the following order:
- Parents
- Brothers and sisters (and their descendants)
- Grandparents (half to paternal side, half to maternal side)
- Aunts, uncles, and their descendants
If no relatives can be located, the estate escheats (reverts) to the state of Florida.
Homestead Property: Special Rules Apply
Florida's constitutional homestead protections create unique rules for the decedent's primary residence. Homestead property is treated differently from other assets under intestacy:
- Survived by a spouse and minor children: The spouse receives a life estate (the right to live in the home for the rest of their life), and the children receive the remainder interest (full ownership when the life estate ends).
- Survived by a spouse and adult descendants: The spouse may elect to either (a) take a life estate with the remainder going to the descendants, or (b) take an undivided one-half interest in the homestead as a tenant in common with the descendants.
- Survived by a spouse with no descendants: The surviving spouse inherits the homestead outright.
The homestead life estate issue is one of the most disruptive consequences of dying without a will. A surviving spouse who inherits only a life estate cannot sell the home without the children's consent, and the children (who may be from a different relationship) have no obligation to agree to a sale.
What Intestacy Does NOT Cover
Several important decisions cannot be addressed under intestacy because they are only available through a will or other estate planning documents:
- Guardianship of minor children: Without a will, the court decides who raises your children. This may not be the person you would have chosen.
- Specific bequests: You cannot leave particular items (jewelry, family heirlooms, a vehicle) to specific people without a will.
- Charitable gifts: Intestacy distributes only to relatives. No portion goes to a church, charity, or organization without a will.
- Disinheritance: You cannot exclude a specific family member from inheriting under intestacy.
- Choice of personal representative: Without a will naming a personal representative, the court follows a statutory preference order, which may result in someone you would not have chosen managing your estate.
The Probate Process Without a Will
Estates without wills still go through formal probate administration. The process is similar to administration with a will, but with some differences:
- The court appoints a personal representative based on statutory priority (typically the surviving spouse first, then the nearest next of kin)
- The estate is distributed according to the intestacy rules above, not according to any preferences the decedent may have expressed verbally
- Disputes among heirs are more common because there is no written document to guide distribution
- Costs may be higher due to the need for additional court proceedings and potential disputes
How to Prevent This From Happening
The solution is straightforward: create an estate plan. Even a basic plan should include:
- A last will and testament directing how your assets should be distributed and naming a personal representative and guardian for minor children
- A revocable living trust for assets you want to keep out of probate entirely
- Beneficiary designations on financial and retirement accounts
- A durable power of attorney and healthcare directive for incapacity planning
Learn more about your options: What's the Difference Between a Will and a Trust?
Do not leave these decisions to the state. Barnes Walker's estate planning attorneys have built plans for thousands of Florida families since 1995. Whether you need a simple will or a trust-based plan, we can help you protect your family and your assets. Call us at 941-778-7721 or submit a legal inquiry.