What happens if you die without a will in Florida?
If you die without a will in Florida, the assets in your estate will be distributed according the rules of intestate succession.
The rules of intestate succession are essentially a backup will. The rules are also called “rules of intestacy,” and someone who dies without a will is said have “died intestate.” All of these terms refer to the same set of rules that are used whenever someone doesn’t have a valid estate plan, even if those rules contradict the wishes of the person who died.
When do assets pass according to the rules of intestacy in Florida?
If (1) you have a proper will or an estate plan that avoids probate entirely, and (2) all of your assets are included in the will or estate plan, then your assets will not pass according to the rules of intestacy. In any other scenario, your assets will pass according to the Florida rules of intestacy. In other words, intestate succession is the default option and you must proactively do something if you want to avoid intestacy.
Put differently, the rules of intestacy apply when an asset is not part of some valid estate plan. And the key word here is “valid.” If the estate plan is not valid for some reason (not enough witness signatures on a will, for example), then the rules of intestacy take over even if the probate judge agrees that the person who died never intended for the assets to pass by means of intestacy. For example, if you passed away with no will and you recorded a video in which you clearly state that your best friend is supposed to get your grand piano, your best friend still will almost certainly not get the grand piano! Even if you had a document that looked like a will, but it was never property executed, intestacy is going to take effect and that piano will go to whomever the statutes say should get the piano.
So who takes what under Florida intestacy?
To figure out who takes under intestacy, we first have to answer one important question: Was the deceased survived by a spouse? Put differently, did the deceased have a living husband or wife at the time of death? If yes, then we go down one path for intestacy. And if no, then we go down another path.
How does intestacy work if there is a surviving spouse?
If there is a surviving spouse, we must pay close attention to the descendants of the deceased individual and of the surviving spouse to figure out where the assets go. We are going to walk through a few scenarios and discuss the implications of each.
If the deceased has no descendants, then the surviving spouse takes the entire intestate estate.
If the deceased has descendants, all of whom are also descendants of the surviving spouse, then the surviving spouse takes the entire intestate estate. Note that ALL of the descendants must also be descendants of the surviving spouse for this rule to be applicable.
If the deceased has descendants, at least one of which is not also a descendant of the surviving spouse, then the surviving spouse will take one half of the intestate estate and the deceased’s descendants will take the other half, per stirpes.
If the deceased has descendants and the surviving spouse also has descendants, at least one which is not a descendant of the deceased, then the surviving spouse will take one half of the intestate estate and the deceased’s descendants will take the other half, per stirpes.
How does intestacy work if there is no surviving spouse?
If there is no surviving spouse, then the intestate estate is distributed entirely to other heirs in the following order:
Descendants, per stirpes;
Parents;
Brothers, sisters, and their descendants, per stirpes;
One half to paternal grandparents and one half to maternal grandparents, and their descendants, per stirpes (and both halves just go to one side if the other side has no takers left);
Kindred of the last deceased spouse, as if she had survived the descendant and then died;
Escheat to the state.
The rules of intestacy require us to look at the top category available and try to give away the entire intestate estate to the takers in that category. So, if there is at least one descendant who will take their intestate share, then we stop there and give the entire intestate estate to the takers in that category. But if there are no takers in that category, then we move down one category to the parents. If there are any living parents of the deceased, then those parents will take the entire intestate estate. But if not, we move to the next category, etc.
But what if the deceased had a common law marriage?
Generally, Florida does not recognize common law marriages, and a common law marriage will generally not count for the purposes of intestacy. If the deceased was not legally married, then you need to go down the route of having no surviving spouse.
Note that it makes no difference if the deceased held himself out as married, or if the deceased deeply loved the “spouse” and treated the relationship like a marriage. The deceased may have even intended to leave everything to the “spouse” but never got legally married. In all of these scenarios, the deceased will be treated as having no surviving spouse.
When does intestate distribution happen?
The whole process can take a while. The intestate estate cannot be distributed until the personal representative takes care of some other tasks first, like figuring out what is in the estate, determining which creditors need to be paid, paying taxes, and making sure there isn’t a valid will hidden somewhere. But before those tasks can be completed, the personal representative has to be appointed by a court in a process called “probate.” The probate court will be overseeing the entire probate process, which makes things take even longer.
What if I want to decide what happens to my stuff after death?
You can! This is called “estate planning.” An estate plan allows you to determine exactly what will happen to all your assets. And you can potentially save your loved ones from unnecessary frustration and taxes with a good estate plan. Consider reaching out to an estate planning lawyer to learn more.