State intestacy laws come into play when a person dies without a valid will in place. When someone passes away and they do not have a legally valid will in place, they are said to have died “intestate.” In the absence of having the terms of a will direct distribution of a person’s probate estate, the terms set forth in the state intestacy laws will apply.
Florida’s Intestacy Laws
Before delving into Florida’s intestacy laws, it is important to be clear on the fact that not every asset a decedent leaves behind will be impacted by intestate succession laws. If a person dies without a will, only their probate estate will be impacted by intestacy laws. You should be aware, however, that it is often the case that many of a person’s most valuable assets do not end up going through probate and, thus, would not be impacted by intestate succession laws. Assets that would not pass via intestate succession laws include:
- Property held in a living trust
- Retirement accounts with a named beneficiary
- Life insurance proceeds with a named beneficiary
- Securities designated as transfer on death
- Real estate held with a transfer on death deed
- Vehicles with a transfer on death registration
- Bank accounts designated as payable on death
- Property held in joint tenancy or tenancy by the entirety
These are assets that would not pass via a will and, in the absence of a will, they would not pass via intestate succession laws. Instead, they pass directly to the named beneficiary or surviving co-owner.
Other assets, however, will pass according to Florida’s intestate laws in the absence of a valid will being in place. Who gets what under the laws of intestate succession will depend on what relatives survived the decedent. Generally speaking, Florida’s intestate laws give inheritances to those surviving relatives closest to the decedent. In the absence of close relatives, other, more distant relatives would inherit. In the absence of any surviving relatives, the decedent’s assets would pass, or “escheat,” to the State. This rarely happens though because the property will pass to anyone remotely related to the decedent before it would escheat to the State.
In Florida, the laws of intestate succession start by looking to see if the decedent had a surviving spouse or children. If you die with children, but no spouse, your children will inherit everything. If you die with a surviving spouse but no children, you spouse will inherit everything. If you die with a surviving spouse and surviving children from you and that spouse, and that spouse has no other children, you spouse will inherit everything. If you die with a surviving spouse and children from you and that spouse, but your spouse has children from another relationship, then your spouse will inherit half of your intestate property and the other half will be divided among your children. Note that, for purposes of Florida’s intestacy laws, your children are those children that are legally recognized as yours. This means that children you have legally adopted would receive an intestate share the same as a biological child would.
Estate Planning Attorney
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