If you pass away in Florida without having prepared a will (dying “intestate”), the following occurs: Florida law provides a mechanism which will determine both the manner your property is distributed and to whom it is distributed. Specifically, Chapter 732, Florida Statutes contains the relevant laws which govern how property devolves in the absence of a will or in other situations, such as where the drafter of a will neglects to properly include a residuary clause.
Florida Statute 732.102 provides that where the person who passed away left no descendants, the entire estate will be distributed to the spouse. Similarly, where all the descendants of the decedent are also descendants of the spouse, the spouse will receive the entire estate. If the decedent was survived by descendants who are not descendants of the surviving spouse, the spouse takes one-half of the estate with the remaining half distributed to the descendants. Furthermore, if there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, but the surviving spouse has descendants who are not descendants of the decedent, the spouse will receive one-half of the estate with the remaining half being shared by the descendants. Florida law appears to reflect the need to protect the children of the decedent in the 2nd wife scenario, where it is uncertain the spouse would voluntarily share the estate with the descendants of the decedent alone.
If there is no spouse or any remaining descendants of the decedent, the property will pass to the decedent’s father and mother equally, or to the survivor of them. If neither is alive, the property will pass to the brothers and sisters of the decedent and to the descendants of deceased brothers and sisters. If none of the previously mentioned people are alive, then the estate is divided in half, with one-half going to the decedent’s paternal kindred and the other half going to the maternal kindred. If there is no grandfather or grandmother, the property will then be distributed to uncles and aunts and to their surviving descendants.
Florida provides for property to pass per stirpes as opposed to per capita. A simple example will illustrate how these two schemes of devise end up with different results. In a per capita scheme, which is followed in many other states, each taker receives an equal share with the other individuals at his or her same level. So, if x is survived by two children a, who has one child y, and b who has two children o and p, if a and b fail to survive x, all of the grandchildren of x will receive equal one-third shares of the property. In contrast, in a per stirpes scheme, the grandchildren would share unequally. The one child of A would receive 50 percent of the estate (representing his parent’s share), while b’s children would split their parent’s portion and would only receive ¼ shares of the estate.
When no relatives can be located who qualify to inherit the decedent’s property under the intestacy statute, the estate escheats to the state. In this situation, the property is sold and the proceeds of the sale are distributed to the State Treasurer.
If you would like to control the way your property is distributed when you are gone, some minimal level of estate planning is required, even if that only entails re-titling your property or naming beneficiaries on your financial accounts.
Contact our Fort Lauderdale or Boynton Beach office today to speak with an attorney regarding wills, trusts, powers of attorney or any other matter related to estate planning or probate.

CategoryLegal Blog