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Intestate means having died without a will. If there is no will, each state has laws that specify who will inherit the property of the deceased (referred to as the “decedent” in probate proceedings), which are usually based on the closeness of familial relationships. In complex situations, intestacy can lead to unwieldy results, and even in the simplest cases can unnecessarily complicate the probate of the estate while the family relationships are proven to the probate court.

An example of the chaos intestacy can cause is the $300 million estate of the rock performer known as Prince (real name:Prince Rogers Nelson), who died intestate in 2016. Prince had never been married, had no children, and was predeceased by his parents, whose marriage produced only two children. Under Minnesota’s intestacy laws, his sole heir and next of kin should have been his sister. However, within weeks of his death, over 700 people claimed to be Prince’s half-siblings (out-of-wedlock children of Prince’s late father) while others claimed to be Prince’s own out-of-wedlock children.

If you need to manage the estate of a person who died without a will, make sure you engage the services of an experienced probate lawyer who can help you navigate the added complexity and procedural hurdles of an intestate probate.

Intestacy statutes usually come into play when the deceased leaves no will. However, intestacy statutes also apply to property not properly disposed of in a valid will[1]; or to the extent that the law prohibits a disposition of property by will, such as under Florida’s restrictions on descent of homestead.[2]

First in Line: The Spouse

  1. If the intestate decedent has a spouse and no descendants, the spouse inherits the entire estate.[3]
  2. If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the spouse inherits the entire intestate estate.[4]
  3. If there are any surviving descendants of the decedent who are not lineal descendants of the surviving spouse, the spouse inherits one-half of the intestate estate.[5]
  4. If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, but the surviving spouse also has one or more descendants who are not descendants of the decedent, the spouse inherits one-half of the intestate estate.[6]

Next Up: The Descendants

Any part of the intestate estate not passing to the surviving spouse under § 732.102, or the entire intestate estate if there is no surviving spouse, descends to the decedent’s descendants[7] per stirpes.[8] After-born heirs conceived during the decedent’s lifetime inherit intestate property as if they had been born in the decedent’s lifetime.[9]

Backup Plan: The Family Tree (But Only To The Grandparent Level)

If the decedent is not survived by a spouse or descendants, the intestate estate passes:

  1. To the decedent’s father and mother equally, or to the survivor of them.[10]
  2. If the decedent’s parents have both predeceased, then to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.[11]
  3. If there are neither siblings nor nieces and nephews, then one-half of the estate goes to the decedent’s paternal relatives, and the other half goes to the decedent’s maternal relatives 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 the decedent’s uncles and aunts and descendants of deceased uncles and aunts of the decedent.
    3. If there are either no surviving paternal kindred or no surviving maternal kindred, the entire estate goes to the side with survivors.[12]
  4. If there are no surviving kindred on either the decedent’s mother’s side or father’s side, and the decedent was predeceased by a spouse, the intestate estate passes to the intestate heirs of the last deceased spouse of the decedent.[13]
  5. In the absence of a predeceased spouse with intestate heirs, the family tree exploration ends at the grandparent level, after which property escheats.[14] 

And Then There Were None: Escheat to the State

When the decedent is not survived by a spouse, descendants, parents, siblings, or kindred as defined in § 732.103, then that person is not survived by any heirs entitled to inherit an intestate portion of the estate, and the intestate estate escheats, which means it becomes the property of the State of Florida.[15] Any property that escheats is sold and proceeds paid to Florida’s Chief Financial Officer and deposited in the State School Fund.[16] A person who is entitled to any portion of the escheated estate has ten years from the payment to the Chief Financial Officer to reopen the estate administration to assert the claim; after ten years, “the state’s rights to the proceeds shall become absolute.”[17]

Adoption Counts

Pursuant to § 732.108(1), for purposes of intestate inheritance an adopted child is a descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent’s family, and is not a descendant of the child’s natural parents, nor is the child one of the kindred of any member of the natural parent’s family or of any prior adoptive parent’s family, with the following exceptions:

  1. Adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and the natural parent or the natural parent’s family.
  2. Adoption of a child by a natural parent’s spouse who married the natural parent after the death of the other natural parent has no effect on the relationship between the child and the family of the deceased natural parent.
  3. Adoption of a child by a close relative (the child’s brother, sister, grandparent, aunt, or uncle) has no effect on the relationship between the child and the families of the deceased natural parents.

The Paternity Test

Under § 732.108(2), a child born to unmarried persons is automatically a member of the mother’s family for purposes of intestacy. However, the child is only treated as a member of the father’s family if the parents participate in a marriage ceremony before or after the child’s birth or if the paternity of the father is either adjudicated or acknowledged in writing by the father.

Termination of Parental Rights Includes Inheritance Rights

§ 732.1081 provides that a natural or adoptive parent is barred from inheriting from or through a child if the natural or adoptive parent’s parental rights were terminated prior to the death of the child. Instead, the natural or adoptive parent shall be treated as if the parent predeceased the child.

Your Debts Die With You

An intestate heir who is a debtor of the decedent will have their intestate share reduced by the amount they owed, but the debt will not reduce the share of the descendants of a debtor who predeceased the decedent.[18]

Simultaneous Death

Unlike some jurisdictions that make presumptions about who survives in a simultaneous death scenario, Florida intestacy law effectively treats the decedents as both having predeceased each other. Absent a testamentary instrument to the contrary, Fla. Stat. § 732.601 provides as follows:

  1. When title to property or its devolution depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if that person survived.
  2. When two or more beneficiaries are designated to take successively by reason of survivorship under another person’s disposition of property and there is insufficient evidence that the beneficiaries died otherwise than simultaneously, the property thus disposed of shall be divided into as many equal parts as there are successive beneficiaries and the parts shall be distributed to those who would have taken if each designated beneficiary had survived.
  3. When there is insufficient evidence that two joint tenants or tenants by the entirety died otherwise than simultaneously, the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. If there are more than two joint tenants and all of them so died, the property thus distributed shall be in the proportion that one bears to the number of joint tenants.
  4. When the insured and the beneficiary in a policy of life or accident insurance have died and there is insufficient evidence that they died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.

[1] § 732.101(1), Fla. Stat. This often occurs with self-prepared wills that lack a valid residuary disposition.

[2] Shone v. Bellmore, 75 Fla. 515, 78 So. 605 (1918) (the owner of a homestead cannot by will bar the interest of his spouse and children in the homestead); Johns v. Bowden, 68 Fla. 32, 66 So. 155 (1914) (homestead cannot be devised when the decedent is survived by a spouse or by minor children).

[3] § 732.102(1).

[4] § 732.102(2).

[5] § 732.102(3).

[6] § 732.102(4).

[7] § 732.103(1).

[8] § 732.104: “Descent shall be per stirpes, whether to descendants or to collateral heirs.” Balboni v. LaRocque, 991 So.2d 993 (Fla. 4th DCA 2008).

[9] § 732.106. There is presently no provision in the statute for heirs conceived using the decedent’s genetic material after the decedent’s death.

[10] § 732.103(2).

[11] § 732.103(3). Half-brothers and sisters are included as siblings. “Generally, statutory provisions regulating descent are construed to include brothers and sisters of half-blood.” Lowrimore v. First Sav. & Trust Co. of Tampa, 102 Fla. 740, 140 So. 887 (Fla. 1931), modified on rehearing 102 Fla. 740, 140 So. 8. However, when collateral heirs include both full and half blood relatives, “those of the half blood shall inherit only half as much as those of the whole blood; but if all are of the half blood they shall have whole parts.” § 732.105, Fla. Stat.

[12] § 732.103(4).

[13] § 732.103(5).

[14] Note that the family tree consanguinity analysis was extended by § 732.103(6) to the great-grandparent level for descendants of Holocaust victims, but that provision no longer applies. “If none of the foregoing, and if any of the descendants of the decedent’s great-grandparents were Holocaust victims as defined in s. 626.9543(3)(a), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the descendants of the great-grandparents. The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004.”

[15] § 732.107(1).

[16] § 732.107(2).

[17] § 732.107(3).

[18] § 732.109.