Florida Inheritance Laws With No Will

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When a Florida resident dies without a will (known as intestacy), Florida inheritance laws provide who in the family is entitled to inherit from the estate.

If the Decedent Died with a Surviving Spouse

The surviving spouse takes the following portion of an estate (Florida Statute Section 732.102):

  1. If there is no surviving descendant of the decedent, the entire intestate estate.
  2. If there are surviving descendants of the decedent, all of whom are also lineal descendants of the surviving spouse, and the surviving spouse has no other descendants, the entire intestate estate.
  3. If there are surviving descendants, one or more of whom are not lineal descendants of the surviving spouse, one-half of the intestate estate.
  4. If there are one or more descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, one-half of the intestate estate.

The remainder of the Estate passes as follows:

  1. To the descendants of the decedent.
  2. If there is no descendant, to the decedent’s father and mother equally, or to the survivor of them.
  3. If there is none of the foregoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.
  4. If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order:
    1. To the grandfather and grandmother equally, or to the survivor of them.
    2. If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
    3. If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
  5. If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.

Importantly, surviving spouses need to be aware that not all assets are probate assets.  If there are nonprobate assets that pass to others outside the probate estate, the surviving spouse might have an elective share claim, to receive the benefit of some of the nonprobate assets.

If the Decedent Died Without a Surviving Spouse

The part of the intestate estate not passing to the surviving spouse, or the entire intestate estate if there is no surviving spouse, as follows (Florida Statute Section 732.103):

  1. To the descendants of the decedent.
  2. If there is no descendant, to the decedent’s father and mother equally, or to the survivor of them.
  3. If there is none of the foregoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.
  4. If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order:
    1. To the grandfather and grandmother equally, or to the survivor of them.
    2. If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
    3. If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
  5. If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.

For the non-spouse heirs, the first three provisions are easy:  “down” (to children and/or grandchildren); if no children, then “up” (to parents); and if no parents, then “sideways” and “diagonally” (to siblings and the children of deceased siblings, who would be nieces and nephews). After, that, the estate would go to grandparents, if alive.  If there are no living grandparents, then the estate goes to the aunts and uncles of the deceased and their descendants. Finally, the estate passes to the family of the last deceased spouse of the decedent.

 

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