What You Need to Know About Florida Intestacy Law

When someone passes away without a Last Will and Testament, it can leave loved ones in a challenging position. In Florida, intestacy laws determine how the deceased person’s estate will be distributed. These laws apply only when there is no valid Will or trust in place.

If you’re dealing with the loss of a loved one, understanding Florida intestacy law can clarify how their assets may be divided and help you prepare for the next steps. On the other hand, if you don’t have a Will yourself, learning about these laws can highlight the importance of creating an estate plan that aligns with your wishes and protects your loved ones from potential uncertainty.

Who Is Considered a Descendant in Florida?

Before exploring how Florida distributes assets under intestacy laws, it’s important to understand who qualifies as a descendant. Florida law defines "descendants" as direct bloodline relatives, including children, grandchildren, and great-grandchildren. This may include legally adopted children. However, children born outside of marriage may face complications unless paternity has been established.

Keep in mind that stepchildren, foster children, and unrelated individuals who were cared for by the deceased are not included as descendants under intestacy law unless they were formally adopted.

How Florida Intestacy Law Works

Florida’s intestacy laws, outlined in Chapter 732 of the Florida Statutes, govern how a deceased person’s estate is distributed when there is no valid Will. These laws prioritize close family members, starting with the surviving spouse and descendants.  The distribution order is based on familial closeness, ensuring immediate family members are prioritized.

Here’s how assets are distributed in common scenarios:

1. If There Is a Surviving Spouse and No Descendants

The entire estate goes to the surviving spouse.

Example:

• John passes away, leaving behind his wife, Mary, but no children.
• Mary inherits the entire estate.

2. If There Is a Surviving Spouse and All Descendants Are Shared Between the Deceased and the Spouse

If the deceased and their spouse had children together, and there are no children from other relationships, the surviving spouse inherits the entire estate.

Example:

• John passes away, leaving behind his wife, Mary, and their child, Alex.
• Mary inherits the entire estate. Alex does not inherit directly because the law assumes Mary will manage the assets for their shared family.

3. If There Is a Surviving Spouse and the Deceased Has Descendants From a Previous Relationship

If the deceased has a child (or other descendants) from a prior relationship, the estate is split between the surviving spouse and those descendants. The spouse receives half of the estate, and the other half is divided equally among the deceased’s children.

Example:

• John passes away, leaving behind his wife, Mary, and a child from a previous relationship, Sarah.
• Mary inherits half of the estate, and Sarah inherits the other half.

4. If There Is No Surviving Spouse

If the deceased had no surviving spouse, the entire estate is divided equally among the deceased’s descendants (children, grandchildren, etc.).

Example:

• John passes away, leaving behind two children, Alex and Emma, but no spouse.
• Alex and Emma each inherit half of the estate.

5. If There Are No Surviving Spouse or Descendants

If there are no immediate family members like a spouse or children, the estate passes to other relatives in the following order: Parents, siblings, nieces and nephews, grandparents, aunts and uncles.

Example:

• John passes away, leaving behind no spouse, children, or parents. His brother, Michael, is his closest relative.
• Michael inherits the estate.

Special Rules for Homestead Property

Homestead property is treated differently under Florida intestacy laws to protect surviving family members, ensuring they are not displaced after the death of a loved one. In addition to general inheritance rules, Florida’s intestacy laws have specific provisions for homestead property, or the deceased’s primary residence. If the deceased owned the home in their name alone, Florida law protects it for the benefit of their surviving family members.

• If There Is a Surviving Spouse and Other Children not of the marriage: The spouse can take a life estate in the homestead, with a remainder to the descendants at the time of the decedent’s death. This means that the spouse may live in the property for the remainder of their lifetime. Another option is for the surviving spouse to elect to receive an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants at the time of their death.

What Happens to Debts Under Florida Intestacy Law?

Before assets are distributed to heirs, Florida law requires the estate to address any outstanding debts. Creditors can make claims against the estate during probate, the court-supervised process of settling the estate. Common debts include:

• Medical bills
• Mortgages
• Credit card balances

If the estate does not have enough assets to cover the debts, creditors may not receive full payment. Heirs typically are not personally responsible for the decedent’s debts unless they co-signed a loan or have other legal obligations.

Intestacy and Blended Families

Florida’s intestacy laws can become complicated for blended families. If the deceased person had children from a previous relationship, the surviving spouse and those children might inherit jointly. This division can lead to disputes, especially if there were financial imbalances or unresolved tensions within the family. Proper estate planning can prevent these challenges by ensuring that all family members are provided for according to the decedent’s wishes.

Common Misconceptions About Intestacy in Florida

Myth:  If I Die Without a Will, My Spouse Automatically Gets Everything.

Fact: This is only true if there are no descendants outside the marriage. If there are children from a previous relationship, the estate is divided.

Myth: I Don’t Have Enough Assets to Need a Will.

Fact: Even small estates can cause disputes. A Will ensures a smoother process and reduces the chances of family conflict.

Myth: I Don’t Need to Worry About Probate if I Have No Will.

Fact: All estates, with or without a Will, go through Miami probate in Florida unless the assets are set up to bypass probate (e.g., through trusts, joint ownership, or having designated beneficiaries listed on certain assets).

Myth: If I Die Without a Will, the State Will Take Everything.

Fact: The state of Florida only takes the estate (a process called escheat) if no eligible relatives can be found. This is rare, as intestacy laws seek to distribute assets to even distant relatives before escheat applies.

Florida’s intestacy laws provide a structure for asset distribution when there’s no Will, but they often leave families with uncertainty or unintended outcomes. Whether you’re handling probate for a loved one or thinking about your own estate plan, taking action now can prevent confusion and protect those who matter most. Reaching out to a probate lawyer can clarify your options and give you confidence in the next steps.

Facing Probate or Planning Ahead?

Losing a loved one who didn’t leave a Will can be overwhelming. Handling Florida probate while intestacy laws determine who inherits adds emotional and legal challenges at an already difficult time. Similarly, you might be putting off creating your own Will because you feel you don’t have enough assets or life is just too hectic.

At Denise Jomarron Legal Group, we’re here to meet you where you are. If you’re dealing with probate for a loved one, we can guide you through the process and clarify how Florida intestacy laws apply. If you’re ready to plan your own estate, we’ll work with you to create a personalized plan that aligns with your goals and protects your loved ones from future uncertainty.

You don’t have to leave these important matters to chance. If you’ve been searching online for “probate lawyers in Miami, Florida” or “probate law firms near me,” contact us instead. Call us at (305) 402-4494 or complete our confidential online form to schedule a consultation. Whether you’re facing probate or planning ahead, we’ll help you take the next step with confidence.

At Denise Jomarron Legal Group, our goal is to provide clear, compassionate legal guidance tailored to your unique situation. We are dedicated to understanding your needs, the needs of your family, and explaining what actions we can take on your behalf. We will work with you every step of the way to make certain you are satisfied and confident about your future. 

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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.

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