Failing to adequately plan your estate—whether large or small—can be a disservice to your surviving family members and other heirs. Under Florida laws, you estate can be left vulnerable during the probate process—especially if you pass away without creating a will.
The probate courts are responsible for settling the affairs of recently deceased individuals. Among other duties, these courts oversee the distribution of assets within the decedent’s estate to his or her heirs. As a guide for this process, probate courts use a valid will.
What if there is No Will?
Without the guidelines of a valid will, the Florida probate courts must follow the laws of intestate succession. “Intestate” refers to the estate of a person who dies without leaving behind a valid will.
The rules of intestate succession prioritize your immediate family members and descendants. How your estate will actually be distributed depends on the structure of your family at the time of death. If you have a spouse or children, they have priority in the intestate process.
Spouse’s Share. Under Florida laws, the share that your spouse will receive depends on whether or not you have living descendants. This includes children, grandchildren, and great-grandchildren.
- If you die with a spouse but no children, your spouse will inherit everything.
- If you die with children from you and your spouse, and your spouse has no descendants from previous relationships, your spouse inherits everything.
- If you have children with your surviving spouse, and he or she has children from another relationship, your spouse will inherit half of your estate, and your decedents inherit the other half collectively.
- If you die with descendants who are not the descendants of your spouse, your spouse will inherit half of your intestate assets, and your descendants inherit the other half.
Children’s Share. Children and other descendants may receive an intestate share of your property. Their share depends on whether or not you are married. If you have children but no spouse, the children inherit all of your estate.
For children to inherit your property, the State of Florida must consider them legally your children. In many cases, this is not an issue for families. But it can become more confusing in certain situations—for example, families with foster children or stepchildren.
Here are some of the special circumstances worth noting:
- Adopted Children. If a child is legally adopted, intestate law considers them the same as biological children.
- Foster Children and Stepchildren. If a foster child or stepchild is never legally adopted, they do not receive a portion of your intestate estate.
- Children placed for adoption. If your biological children were legally adopted by another family, they are no longer entitled to a portion of your estate under Florida law, unless they were adopted by your surviving spouse.
- Posthumous Children. If your child was conceived, but not born, before your death, they will receive a share.
- Grandchildren only receive a share if their parent—your child—has passed away.
- Children Born Outside a Marriage. If you were not married to the children’s mother at the time of their birth, they will only receive a part of your estate if:
What if you have no spouse or children?
If you are not married and do not have children when you pass away, your parents will receive all of your estate. If you do not have living parents, your siblings will inherit the intestate estate.
When you pass away with no family, your property reverts to the state. This is relatively rare, as the state will make all attempts to get your property to even the most remote relative. This includes aunts and uncles, grandparents, great aunts and uncles, nieces and nephews, cousins of any degree, and so on.
The laws of intestate succession are complicated, and if you have a unique situation you are curious about, you should consult with an estate attorney.
About the Author:
Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.