Any assets that would have passed to your heirs through your will, if you had one, are affected by Florida intestate succession laws. This typically only includes assets that are titled solely in your own name.
Any assets that are jointly owned or have named beneficiaries are not subject to the probate process and would not be affected by the Florida intestate succession laws. Some examples would be:
- property you have transferred to a living trust.
- life insurance proceeds with a designated beneficiary.
- funds in an IRA, 401(k), or other retirement account, with a designated beneficiary.
- securities held in a transfer-on-death account.
- payable-on-death bank accounts.
- property you own with someone else in joint tenancy or tenancy by the entirety.
The above types of assets pass, by operation of law, to the surviving co-owner or to the beneficiary you named, regardless of whether you have a will.
Under intestate succession, who inherits your assets depends on whether or not you have a spouse, living children, parents, or other close relatives when you die. In Florida, if you are married and you die without a will, what your spouse inherits depends on whether or not you have living descendants, children, grandchildren, or great-grandchildren. If you do not have any living descendants, then your spouse would inherit all of your intestate property. However, if you do have living descendants, what your spouse inherits would depend on the descendants.
If you die with children, or other descendants from you and the surviving spouse, and your surviving spouse has no descendants from previous relationships, your surviving spouse would inherit everything. However, if you die with children, or other descendants from you and the surviving spouse, and your surviving spouse has descendants from a previous relationship, your surviving spouse would inherit half of your intestate property and your descendants inherit the other half.
If you die with descendants who are not the descendants of your surviving spouse. Your spouse inherits half of your intestate property and your descendants inherit the other half.
Example: Barrett is married to Jed and also has a 12-year-old daughter from a previous marriage. Barrett owns a house in joint tenancy with Jed, plus $200,000 worth of additional, separate property that would have passed under a will if Barrett had made one. When Barrett dies, Jed inherits the house outright and $100,000 worth of Barrett’s property. Barrett’s daughter inherits the remaining $100,000 share of Barrett’s property.
| If you die with: | here is what happens: |
|---|---|
| children but no spouse, | your children inherit everything. |
| a spouse but no descendants, | your spouse inherits everything. |
| a spouse and descendants from your spouse, and the spouse has no other descendants, | your spouse inherits everything. |
| a spouse and descendants from you and that spouse, and the spouse has descendants from another relationship, | your spouse inherits 1/2 of your intestate property, andyour descendants inherit 1/2 of your intestate property. |
| a spouse and descendants from you and someone other than that spouse, | your spouse inherits 1/2 of your intestate property, andyour descendants inherit 1/2 of your intestate property. |
| parents but no spouse or descendants, | your parents inherit everything. |
| siblings but no spouse, descendants, or parents, | your siblings inherit everything. |
Children’s Shares in Florida
If you die without a will in Florida, your children will receive an “intestate share” of your property. The size of each child’s share depends on how many children you have and whether or not you are married. (See the table above.)
For children to inherit from you under the laws of intestacy, Florida must consider them your children legally. For many families, this is not a confusing issue. But it is not always clear. Here are some things to keep in mind.
- Adopted children: Children you legally adopted will receive an intestate share, just as your biological children do.
- Foster children and stepchildren: Foster children and stepchildren you never legally adopted will not automatically receive a share.
- Children placed for adoption: Children you placed for adoption and who were legally adopted by another family will not receive a share. However, if your biological children were adopted by your spouse, that will not affect their intestate inheritance.
- Posthumous children: Children conceived by you but not born before your death will receive a share.
- Children born outside of marriage: If you were not married to your children’s mother when she gave birth to them, they will receive a share of your estate if (1) you participated in a marriage ceremony that turned out to be void, (2) a court establishes your paternity, or (3) you acknowledge your paternity in writing.
- Grandchildren: A grandchild will receive a share only if that grandchild’s parent (your son or daughter) is not alive to receive his or her share.
If you want to read the law, Florida Code § § 732.106 and 732.108 cover parent-child relationships.
This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney.
Will the State Get Your Property?
If you die without a will and do not have any family, your property will “escheat” into the state’s coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won’t go to the state if you leave a spouse, children, siblings, parents, grandparents, aunts or uncles, great uncles or aunts, nieces or nephews, cousins of any degree, or the children, parents, or siblings of a spouse who dies before you do.
Other Florida Intestate Succession Rules
Here are a few other things to know about Florida intestacy laws:
- Half-relatives. “Half” relatives inherit as if they were “whole.” That is, your sister with whom you share a father, but not a mother, has the same right to your property as she would if you had both parents in common.
- Posthumous relatives. Relatives conceived before — but born after — you die inherit as if they had been born while you were alive.
- Immigration status. Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States.
For assistance regarding a guardianship or Probate Administration matter, please contact Ann Marie Gilden, Esquire of Ann Marie Giordano Gilden, P.A. at (407) 732-7620, and visit my website at www.AnnMarieGildenLaw.com.
This information is provided only as educational materials, and does not constitute the provision of legal advice, and does not create any attorney client relationship.