When a person who has their primary residence in Florida dies without having created a valid, binding and enforcable Last Will and Testament, the State’s intestacy succession laws which are part of the Florida Probate Code will dictate to the family who inherits the deceased person’s probate estate.
Here is a summary of the Florida intestacy succession laws as they apply to common scenarios:
If the Deceased Person is Survived by a Spouse and/or Descendants
A family grave in the New Orleans Cemetery #1 © 2018 B.Rhoden
When a person dies leaving behind either a spouse or issue (issue means kids!) this is what will typically happen to the estate:
Survived by a spouse and no descendants: In this case, the surviving spouse will inherit 100% of the probate estate.
Survived by descendants and no spouse: In this case, the deceased person’s descendants will inherit 100% of the probate estate, per stirpes.
Survived by a spouse and descendants, all of whom are descendants of the spouse, and the surviving spouse has no other descendants: The surviving spouse will inherit 100% of the deceased person’s probate estate.
Survived by a spouse and descendants, some of whom are not the descendants of the surviving spouse: Because some of the decedent’s issue/descendants are not also issue/descendants of the surviving spouse (i.e. the deceased person has children from a prior relationship), the surviving spouse will inherit one-half (1/2) of the probate estate and the descendants will inherit the remaining one-half (1/2), per stirpes.
Survived by a spouse and descendants all of whom are descendants of the surviving spouse, but the surviving spouse has descendants who are not descendants of the deceased person: Here, the surviving spouse has descendants who are not also descendants of the decedent husband/wife (i.e. the surviving spouse has children from a prior relationship), the surviving spouse will inherit one-half (1/2) of the probate estate and the deceased person’s descendants will inherit the remaining one-half (1/2), per stirpes. The descendants of the surviving spouse do not inherit in this situation.
Read the three part article on probate by Florida Probate Attorney Bonnie Klein Rhoden.
If the Deceased Person is Not Survived by a Spouse or Any Descendants
This means the decedent had no children, grandchildren, great-grandchildren, etc., ever born. As follows:
a) IF Decedent is survived by one / both parents The parents will inherit equal shares of the deceased person’s probate estate if both are living, or 100% will go to the one remaining parent.
b) IF Decedent has NO parents living and is survived by siblings or descendants of siblings who died previously: The deceased person’s living siblings and the descendants of deceased siblings (nieces and nephews) will inherit 100% of the probate estate, per stirpes. (i.e. If there were 4 siblings, one died before our decedent the 3 remaining siblings would receive 25% each and the deceased sibling’s issue/kids would split the remaining 25% equally.)
Now it gets a bit more complicated…
c) IF Decedent is NOT survived by parents, siblings or descendants of siblings but IS survived by at least one relative on maternal or paternal side: The probate estate will be divided with one-half to the deceased’s paternal family and the other half to the deceased’s maternal family in a particular order, as follows:
(a) First to the maternal and paternal grandfather and grandmother equally, or 100% to the survivor of them.
(b) Next, if all grandparents are predeceased, then to uncles and/or aunts and descendants of deceased uncles and/or aunts (cousins), per stirpes, on both maternal and paternal sides. Any predeceased Aunt or Uncle will have their equal share flow to their descendants in equal shares (i.e. Aunt Sally is dead, she has 2 kids – each child will receive 50% of Aunt Sally’s share.)
(c) If there are no survivors on the paternal side of the family or no survivors on the maternal side of the family as described above, then the entire probate estate will go to the other side of the family in the order stated above.
(d) If there is no surviving family on either the maternal or paternal side the entire probate estate will go to the family of the deceased person’s last deceased spouse as if the deceased spouse had survived the decedent and then died intestate and entitled to the estate.
d) NO SURVIVING FAMILY MEMBERS: If the decedent has NO surviving family after looking at all the possible options above the State of Florida wins. All property of the decedent escheats to the State of Florida. This means the property goes to the State and must be sold with all of the sale proceeds paid to the Chief Financial Officer of the state and deposited into the State School Fund.
If you are not sure if you should inherit from a deceased relative’s estate contact a Florida Probate Attorney and ask what your rights are under Florida’s Intestacy Laws. Call attorney Bonnie Klein Rhoden or attorney Barton W. Hogreve at Mario, Gunde, Peters, Rhoden & Kelley, LLC for a complimentary consultation by phone or in person. 321-631-0506 to call or use the email form at the top of this page. This firm has been serving the community since 1976 and offers two offices, Melbourne and Cocoa (in Cocoa Village), for your convenience. We are the largest and most experienced family law and criminal law firm in Brevard County.
