If a person dies without a Last Will, it is called “intestate”. When a person dies intestate (the “intestate decedent”), an estate plan is created for that person by Florida’s intestate statutes. How probate property of an intestate decedent is distributed, and to whom, is dependent on whether the intestate decedent was survived by a spouse, whether there are surviving descendants, and other surviving heir dynamics.
If an intestate decedent is survived by a spouse, with no surviving descendants (i.e., children, grandchildren, great-grandchildren), or if all surviving descendants are also the descendants of the surviving spouse and the surviving spouse has no other descendants, the surviving spouse receives the entire intestate probate estate (see homestead exception discussed below). If the intestate decedent is survived by a spouse and descendants, any of whom are not also the descendants of the surviving spouse, or if all surviving descendants of the intestate decedent are descendants of the surviving spouse but the surviving spouse also has other descendants, the surviving spouse only receives one-half of the intestate probate estate, with the intestate decedent’s surviving descendants receiving the other one-half share (see automobile and household item exceptions discussed below). If an intestate decedent is not survived by a spouse, Florida’s intestate laws create layers of priority distribution entitlements, commencing with any surviving descendants, then parents, then siblings or descendants of any deceased siblings, then grandparents, then aunts/uncles or descendants of deceased aunts or uncles, and on down the line of kindred until a recipient entitled to the intestate decedent’s intestate probate estate is located. Once a layer has a surviving member, the process stops at that layer. For instance, if there is no surviving spouse, but there are surviving children, you stop at that level, and distribution of the intestate probate estate is determined by the total number of children the intestate decedent had during life. If, for example, the intestate decedent had five kids, with one already being deceased but leaving two kids, the intestate probate estate would be divided into five shares, with one share going to each of the surviving children, and the fifth share being equally split between the intestate decedent’s two grandkids. If, under Florida’s intestate statute, siblings become the surviving heirs, any children of a deceased sibling (nephews or nieces) who survive the intestate decedent will share the portion of the intestate probate estate which would otherwise have been allocated to that deceased sibling had he or she survived (based upon the total number of siblings the intestate decedent had during life).
Florida’s intestate statutes apply only to property becoming part of the intestate decedent’s intestate probate estate. For instance, life insurance payable to a named designated beneficiary passes to that beneficiary, and does not become part of the intestate probate estate. Similarly, jointly owned property with rights of survivorship would pass to the surviving joint owner, and not become part of the intestate probate estate. Certain property interests, even though otherwise becoming subject to Florida’s intestate statutes, have special provisions which govern how they pass, and to whom, as described below.
Homestead: If an intestate decedent has “homestead” real property becoming subject to Florida’s intestate statutes, distribution of that homestead is governed by special rules. If the intestate decedent is survived by a spouse and one or more descendants (which could simply include a grandchild), the surviving spouse must decide whether to take a life estate, with the remainder interest passing to the descendant(s), or take a 50% tenant-in-common interest with the surviving descendant(s). If no surviving descendants exist, a surviving spouse would receive the entire homestead.
Automobile: If the intestate decedent is survived by a spouse, the surviving spouse is entitled to receive up to two automobiles owned by the intestate decedent and becoming part of the intestate probate estate. If no surviving spouse, any surviving children (but not other descendants) would be entitled to the automobile(s).
Household furniture, furnishings, and appliances: Any of these items of property in the intestate decedent’s usual place of abode, up to a maximum value of $20,000.00, pass and belong to the intestate decedent’s surviving spouse, or if none, to surviving children.
Family Allowance: A surviving spouse and/or any surviving lineal heirs (which could include a parent) which an intestate decedent was supporting or obligated to support may be entitled, in addition to other intestate shares or entitlements, a combined maximum of $18,000.00 for their maintenance during the probate administration.
There is only one way to avoid any unwanted consequences resulting from the estate plan imposed under Florida’s intestate statutes. If you need assistance with preparing a Last Will or with implementing any of your other estate planning needs, at Bob Bible Law, we have the knowledge and over 35 years of experience to help you navigate and structure a comprehensive estate plan.