A person dies intestate when property passes without an effective will directing its distribution. Florida law identifies the heirs to that intestate property, generally by family relationship. Establishing the family tree can require careful work, particularly when records are incomplete or relatives disagree.
A simple example shows why the details matter. A married person with children from an earlier relationship may assume that a surviving spouse will inherit everything. Florida’s intestacy rules can instead divide the intestate estate between the spouse and descendants. The rules discussed here concern probate property; a valid trust, beneficiary designation or survivorship arrangement may transfer other property separately.
If you need to administer an estate without a will, an experienced probate lawyer can help identify the heirs, document their relationships and address the required proceedings.
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
- If the intestate decedent has a spouse and no descendants, the spouse inherits the entire estate.[3]
- 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]
- 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]
- 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:
- To the decedent’s father and mother equally, or to the survivor of them.[10]
- 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]
- If there are no surviving siblings or descendants of deceased siblings, one-half of the estate goes to the decedent’s paternal relatives and the other half to the maternal relatives, in the following order:
- To the grandfather and grandmother equally, or to the survivor.
- If neither grandparent on that side survives, to the uncles and aunts and descendants of deceased uncles and aunts.
- If there is no qualifying kindred on one side, the estate passes to the qualifying survivors on the other side.
- 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]
- 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:
- 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.
- 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.
- 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
Under § 732.1081, a natural or adoptive parent whose parental rights were terminated under chapter 39 before the child’s death is barred from inheriting from or through the child by intestacy. For that purpose, the parent is treated as having predeceased the child.
Debts an Heir Owes to the Decedent
A debt owed to the decedent may be charged against the debtor’s intestate share, but not against another heir’s share. If the debtor dies before the decedent, that debt is not taken into account in calculating the intestate shares of the debtor’s heirs.[18] This rule does not mean that the decedent’s own debts disappear at death; valid estate obligations must still be addressed under the applicable probate rules.
Simultaneous Death
When there is insufficient evidence that people died otherwise than simultaneously, Florida’s default rules address each person’s property and different forms of ownership. A contrary intention in the governing instrument can change the result. Section 732.601 provides:
- 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.
- 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.
- 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.
- 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] Florida Constitution, article X, § 4(c), and § 732.4015, Fla. Stat. Homestead generally may not be devised when the owner is survived by a spouse or minor child, except that it may be devised to the spouse when there is no minor child. Section 732.401 supplies separate descent rules when there is no authorized devise, including a surviving-spouse life estate and a possible election of a one-half tenancy-in-common interest in the circumstances covered by the statute.
[3] § 732.102(1).
[4] § 732.102(2).
[5] § 732.102(3).
[6] § 732.102(4).
[7] § 732.103(1).
[8] Section 732.104 requires descent per stirpes for both descendants and collateral heirs. The calculation follows family branches, so the identity and survival of relatives matter.
[9] Section 732.106 covers heirs conceived before the decedent’s death and born afterward. Posthumous reproduction raises additional legal questions and deserves individualized planning.
[10] § 732.103(2).
[11] Sections 732.103(3) and 732.105 include half siblings. Where collateral heirs include both whole-blood and half-blood relatives, the half-blood share is half the whole-blood share; if all are of the half blood, they take whole shares.
[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.
Sources: Florida intestate succession and wills, chapter 732.
Updated October 26, 2026.