Who inherits in Florida if there is no will?

by Kellen Bryant

If there is no will, the Florida Statutes take care of distributing wealth of the person that died.  Yes, the government chooses.

The legal term for someone dying without a will is “intestate” or “intestate succession.”  The probate estate will be referred to as an “intestate estate.”  Intestate succession in Florida is covered under Florida Statute Sections 732.101 – .109 (2009).

This post will break intestate succession down to the basics.

Update 3/2/2010:  As you read through this post, follow the example on how intestate probate works in Florida.

Update 10/18/2011:  Change in law relating to surviving spouses – the $60,000 haircut is out.  This post has been updated to reflect the new law.

Who inherits in Florida when there is no will?

Certain surviving family members, called heirs, will inherit from someone that dies without a will in Florida.

The first person in line to inherit is the surviving spouse, if any.  A surviving spouse is NOT a long time girlfriend or boyfriend – you need to have a valid marriage to be surviving spouse.  The surviving spouse is the first in line to receive an inheritance and largest portion of an intestate estate.  If there are no children, then the wife gets everything.

Next, if there are children, then children of the decedent will inherit after the surviving spouse receives his or her intestate share.  Here is where things get a little tricky.  If a child of the decedent dies before the decedent dies, then the predeceased child’s children (the decedent’s grandchildren) will receive that predeceased child’s portion of the estate.  When I say children, this includes legally adopted children and half-siblings, but NOT unadopted stepchildren of the person that died.

If a deceased person residing in Florida does not have a surviving spouse or children/grandchildren, then you go to the next step.  The decedent’s parents would inherit next.  If the parents are not alive, then you move to siblings.

There is much more to go down the family tree, but due to the rarity of going past siblings, I’m stopping here.  Call me if you have further questions or you are further down the line.

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How much does each person inheriting receive?

In Florida, those inheriting intestate will receive their shares as directed under the intestate statute.  I’m going to start in the same order as I discussed in the preceeding section.

The surviving spouse is first up and gets the most preferential treatment.  If there are no kids or grandkids, then the surviving spouse in Florida gets everything.  If there are kids and grandkids that are all kids/grandkids of the decedent and surviving spouse, then the surviving spouse will get everything.  Last, if the surviving spouse is from a second marriage and the decedent had kids from a previous marriage, then the surviving spouse will get half the estate and the children will get the other half.

Now to the children and grandchildren.  In Florida, children and grandchildren are call descendents or lineal descendents.  Lineal descendents inherit per stirpes (pronounced stir peas) in Florida.  Per stirpes is pretty unfair in comparison to other states that have inheritance “per capita” or “per capita with representation.”   But that is the law.  Per stirpes will split up the remaining estate equally among each child, whether the child survived the decedent or not.  For children that survive the decedent, those children will receive their full share with nothing going to the surviving children’s kids.  For children that did not survive the decedent, the predeceased child’s children will inherit that predeceased child’s share.  The unfairness of per stirpes comes into play when there are more than one predeceased child.  Confused?  Yes, I know – it might be best to call me on this one.

If parents inherit, then the parents each get half.  If one parent is dead, then the other gets everything.

If siblings inherit (meaning the person that died did not have surviving spouse, children, grandchildren, or parents), then the siblings will inherit in the same confusing manner in discussed related to children.

What about debts?

In Florida probate, debts are always paid first.  Before the whole inheritance scheme takes place, the debts must be paid first.

Intestate succession can be very confusing, if you have a question about whether you are entitled to an intestate share in Florida or how much should your share be, contact me.

Are you content with intestate successsion?  Maybe I could change your mind in a past post explaining that Florida intestate is a poor idea of estate planning.

 

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