Intestate property is property that has not been disposed of by a Florida last will and testament. Florida intestate law functions as a default mechanism to distribute property that was not properly devised by a will. These rules designate certain people as heirs to intestate estates and specify how the shares are to be distributed.
Florida intestacy may be whole or partial. It is whole if a person did not leave a will or left a will that is invalid. Intestacy is partial if a will exists but only disposes of part of the person’s assets. This may occur when portions of a will are determined to be invalid.
Florida Intestacy Rules
- A surviving spouse of the decedent receives the entire estate if the decedent has no surviving lineal descendants (children, grandchildren, great-grandchildren, etc).
- A surviving spouse of the decedent will also receive the entire estate if the decedent had descendants that are also descendants of the surviving spouse and neither the decedent nor the surviving spouse had any other children. (Note: This is a relatively recent change to Florida law – see our post on the October 2011 changes to Florida intestacy law for more information.)
- If the decedent is survived by both a spouse and lineal descendants and any of the lineal descendants is not also a descendant of the spouse, then the spouse is entitled to one half of the estate, and the descendants share the balance, per stirpes.
- If there are lineal descendents but no surviving spouse, then the estate is shared by the lineal descendants.
- If there is no surviving spouse and no lineal descendents, then the estate passes to lineal ascendants (parents, grandparents, great-grandparents, etc.) and collateral relatives (siblings, aunts, uncles, etc.). This means that if the decedent’s parents are alive then they are entitled to the estate. If the parents are not alive, then the estate passes to the decedent’s brothers and sisters and their descendents, per stirpes.
- If none of the above heirs survive, then the estate passes to the heirs of the decedent’s grandparents, per stirpes, with one half of the estate going to the decedent’s maternal relatives and one half going to the decedent’s paternal relatives. If there are no relatives on one side, then the entire estate passes to the other side.
“Per stirpes” is a method of distributing shares of an estate. The basic concept is that each descendant is entitled to an equal share, and the share of a deceased descendant is divided equally among his descendants. For example, assume that a decedent had a son and a daughter. The son had a child, and the daughter had two children. The decedent dies without a will or a surviving spouse.
- If both the son and the daughter are alive, they split the estate equally between them, each receiving 50%.
- If the daughter is dead at the time of the decedent’s death, then her children share their mother’s portion, each receiving 25% (half of 50%). The son still receives his 50%, while his child receives nothing.
- If both the son and the daughter are dead at the time of the decedent’s death, then both of their share pass on to their children. The two children of the daughter again receive 25% (half of their mother’s 50%), which the child of the son receives the son’s share of 50%.
Disqualification by Misconduct or Divorce
A person involved in the murder of the decedent is disqualified from inheriting any share of the estate. A criminal conviction for murder is conclusive for this purpose. In the absence of a criminal conviction, the probate court may still find that there was an unlawful killing by the greater weight of the evidence, in which case the killer is likewise disqualified.
A spouse’s right to inherit ends at the time of divorce. However, a spouse who is separated or in the process of divorcing still inherits if the decedent dies before the marriage is dissolved.
Intestacy and the Probate Process
Intestacy does not significantly change the probate process. The biggest difference is that there is no need to prove the validity of a last will and testament. Otherwise, the personal representative’s role still involves opening, administering, and closing the estate.