Intestacy in Florida

In a recent poll held by USA Today, it was determined that more than 60% of Americans do not have a will. Furthermore, nearly one-third of the individuals polled said that they don’t feel the urgency to do so. Since this seems to be a common issue in society, this post will focus on what happens to an individual’s property if they die intestate (without a will) in the state of Florida.

The key factors are whether the person who dies (the “decedent”) is survived by a spouse, children or both. The decedent’s property will be distributed in the following order:

• If the decedent is survived by a spouse and has no lineal descendants, the entire estate will pass to the surviving spouse.
• If the decedent is survived by a spouse and lineal descendants, and all are joint lineal descendants of the decedent and surviving spouse, the entire estate will pass to the surviving spouse.
• If the decedent is survived by a spouse and lineal descendants, and any of the lineal descendants is not also a descendant of surviving spouse, then: one-half of the estate will pass to spouse; and one-half will pass to the descendants, per stirpes.
• If the decedent is survived by lineal descendants, and not a spouse, the estate is shared by the descendants, per stirpes.
• If the descendant is not survived by descendants or a spouse, the entire estate will pass to the decedent’s parents. If the parents do not survive, the estate will pass to the decedent’s brothers and sisters and their descendants, per stirpes. If none of the previously named people survive, the estate will pass to the heirs of the decedent’s grandparents, per stirpes, with one-half to the maternal side and one-half to the paternal side.

Although it can be argued that intestate distribution is better than nothing, it can lead to your property being divided in a manner not consistent with your wishes. As illustrated by the steps above, it is even possible for your property to pass to a person you have never known.

Additionally, the lack of a will can cause severe problems if you have minor children. Absent a will, there may be no record of your intent to appoint a guardian for your minor children. In such a case, this decision will rest with a judge. Furthermore, the distribution of your homestead property is subject to a different set of convoluted and complex rules if you are survived by minor children.

Whether you have a large or small estate it is extremely important to have some form of a will. If you are an individual without a will, we strongly advise you to contact our office to begin the assembly of an estate plan.