Intestate in Florida

In the state of Florida, an intestate estate can occur in three ways. Someone died either:

Without having executed a will
Having revoked a will
Having executed a will that was later deemed invalid

It's also possible that someone in Florida can die partially intestate. This can happen, for example, if some part of a will is inoperable because a named beneficiary has predeceased the testator, or if a will effectively disposes of some assets but not others. 

In cases of an intestate estate or partially intestate estate, Florida statutes cover how the estate should be dispersed to the decedent's heirs. Specifically, Florida Statute § 732 spells out:

Which categories of relatives can qualify as intestate heirs
Establishes the order of priority and the percentage each qualified heir can receive
How Florida is the default inheritor under the process called "escheat" if no heirs can be found

Surviving Spouse

A decedent's surviving spouse is usually entitled to a large portion of an estate if someone dies intestate. But unlike some other states, Florida does not recognize common-law marriages. Nor will it recognize a spouse's inheritance rights if he or she has repudiated the marriage or if the spouse procured the rights by "fraud, duress or undue influence."

Florida rules covering the intestate share of a surviving spouse are as follows:

If the decedent has no surviving lineal descendants, the surviving spouse is entitled to the entire intestate estate
If the decedent has surviving lineal descendants, all of whom are also lineal descendants of the surviving spouse, the surviving spouse is still entitled to the entire intestate estate
If the decedent has surviving lineal descendants, one or more of whom is not a lineal descendant of the surviving spouse, the surviving spouse is entitled to one-half of the intestate estate

Descendants

If a decedent is survived by lineal descendants – that is, blood relatives directly related, such as children or grandchildren – they divide equally whatever portion of an intestate estate that is not allocated to a surviving spouse. These descendants include great-grandchildren, great-great-grandchildren, etc.

Florida probate laws follow a per stirpes distribution system when it comes to the percentage of an estate awarded to lineal descendants. So an intestate estate is divided into as many equal shares as there are surviving members in the generation nearest the decedent as well as to deceased members in the same generation who left surviving descendants.

For example:

John died an intestate widower and left behind two children, both with children of their own. However, son Sam has two children and daughter Jane has three. Both Sam and Jane died before their father, John.

In Florida's per stirpes system, Sam's two children will split half of Grandfather John's estate, each effectively receiving a 25-percent share (one half of one-half). Jane's three children will also split half of John's estate. That means each will inherit a one-sixth share (one-third of one-half).

Parents

If an intestate decedent is survived by neither a spouse nor any lineal descendants, the estate will be distributed to his or her parents. If both parents are alive, each receives a half. If only one is alive, the inheritance is the entire estate.

One way in which Florida probate law can differ from many states is that Florida does not recognize the inheritance rights of step-parents or foster parents.

Siblings and Their Descendants

If an intestate decedent is not survived by a spouse, any lineal descendants or any parents, any surviving brothers or sisters will divide the estate. If a sibling who predeceased the decedent has any descendants, those descendants will divide the sibling's share, in the same per stirpes manner that grandchildren share their deceased's parent's share of a grandparent's estate.

Siblings and their descendants are considered "collateral heirs," a fact that becomes important if the decedent and a sibling share only one parent and have only a "half-blood" relationship.

Paternal and Maternal Kindred

If an intestate decedent is not survived by a spouse, any lineal descendants, parents, siblings or siblings' descendants, Florida law provides for dividing the estate equally between the paternal and maternal "kindred." These are relatives such as grandparents and their descendants: aunts, uncles, cousins and descendants of cousins related by blood (consanguinity). It does not include aunts, uncles, cousins or descendants of cousins related by marriage (affinity).

Some other scenarios:

If there are both surviving paternal and maternal kindred, each group divides one-half of the estate.
If there is only one group, it receives the entire estate.
If there is a surviving grandparent, he or she inherits the entire estate.
If there is no surviving grandparent, the estate is divided among aunts and uncles or their descendants.

Kindred of Deceased Spouse

If an intestate decedent has no heirs in any of the above groups, the estate will be inherited by any heirs of the decedent's deceased spouse in the following order of priority: children, grandchildren, great grand-children, parents, brothers and sisters, descendants of deceased brother and sisters, and, finally, paternal and maternal kindred and their descendants.

If there are no heirs to be found in any of the above groups, the estate will revert to the state of Florida under the laws of escheat.

Special Considerations

In distributing the assets of an intestate estate, Florida courts recognize that adopted persons are considered to be "natural" children, with the right to inherit their adopted parents' estates. The adopted child, though, can no longer inherit the estate of his or her birth parents, (except under certain circumstances), nor can the birth parents inherit from a child given up for adoption.

Children born out of wedlock can inherit a mother's intestate estate and, if paternity can be established, a father's intestate estate, as well.

Florida law treats "afterborn" children, i.e. those conceived before, but born after, the death of an intestate decedent, as eligible to inherit.

Half-blood heirs, i.e. someone related to the decedent by only one parent or grandparent receives only half as much as a whole-blood heir, unless there are no whole-blood heirs surviving, in which case a half-blood relative can receive a whole share.

According to current Florida law, a child born through assisted reproductive methods, such as artificial insemination, in vitro insemination, donated eggs, or surrogacy, "shall not be eligible for a claim against the decedent's estate unless the child is provided for in the decedent's will." So, such a child could not inherit from an intestate estate.