Written by Jeffrey Skatoff • December 28th, 2009
Florida Inheritance Law: No Will
When a Florida resident dies without a will (known as intestacy), Florida inheritance laws provide who in the family is entitled to inherit from the estate. If there is a surviving spouse, the surviving spouse takes the following portion of an estate (Florida Statute Section 732.102):
Spouse's share of intestate estate.--The intestate share of the surviving spouse is:
(1) If there is no surviving descendant of the decedent, the entire intestate estate.
(2) If there are surviving descendants of the decedent, all of whom are also lineal descendants of the surviving spouse, and the surviving spouse has no other descendants, the entire intestate estate.
(3) If there are surviving descendants, one or more of whom are not lineal descendants of the surviving spouse, one-half of the intestate estate.
(4) If there are one or more descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, one-half of the intestate estate.
The part of the intestate estate not passing to the surviving spouse, or the entire intestate estate if there is no surviving spouse, as follows (Florida Statute Section 732.103):
(1) To the descendants of the decedent.
(2) If there is no descendant, to the decedent's father and mother equally, or to the survivor of them.
(3) If there is none of the foregoing, to the decedent's brothers and sisters and the descendants of deceased brothers and sisters.
(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent's paternal, and the other half to the decedent's maternal, kindred in the following order:
(a) To the grandfather and grandmother equally, or to the survivor of them.
(b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
(c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
(5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.
For the non-spouse heirs, the first three provisions are easy: "down" (to children and/or grandchildren); if no children, then "up" (to parents); and if no parents, then "sideways" and "diagonally" (to siblings and the children of deceased siblings, who would be nieces and nephews). After, that, the estate would go to grandparents, if alive. If there are no living grandparents, then the estate goes to the aunts and uncles of the deceased and their descendants. Finally, the estate passes to the family of the last deceased spouse of the decedent.
Florida Inheritance Law: Will is Present
A will can be admitted to probate in Florida to control the inheritance. The following are some of the rules that govern the law of inheritance when there is a will.
- The will must be executed with the required formalities to be effective for inheritance purposes. If the will was not executed with the necessary formalities, it can be challenged.
- The will must have been executed by the testator of the testator's free will, with adequate capacity. If not, the will can be challenged for undue influence or lack of capacity grounds.
- If the will purports to disinherit the surviving sposue, the spouse can choose to take the elective share for the spouse's inheritance.
- If the testator gets married or has children after the will is prepared, Florids inheritance law provides that pretermitted children and pretermitted spouses can still have inheritance rights.
The attorneys of Clark Skatoff would be pleased to work with you on your Florida probate and inheritance matters. Please call (561) 842-4868 to discuss your situation with one of our probate and estate lawyers.
Written by Jeffrey Skatoff.