Florida Laws of Intestacy
Florida intestacy laws govern estate property in Florida when there is no will
Intestacy is the status of an estate when the decedent dies without a last will and testament. When a person dies without a will, they are said to die intestate, and the estate in Florida is distributed according to Florida's intestacy laws. Florida's intestacy laws are found in Chapter 732 of the Florida Statutes. Florida Statutes, F.S. 732.101 , sets out the definition of an intestate estate as any part of an estate that is not covered by the terms of a last will and testament. This means that even if a decedent leaves behind a last will and testament, any part of the estate not covered by the will is part of the intestate estate.
1. Intestate Succession
- When a person dies intestate, the estate gets distributed according to the laws of intestate succession. These establish a prearranged set of beneficiaries based on a person's relationship with the decedent.
- For example, Florida Statutes 732.102 states that the surviving spouse of the intestate decedent receives the entire estate if neither the decedent nor spouse have any lineal descendants. If a decedent and a surviving spouse share any lineal descendants and neither of them have any other lineal descendants, the surviving spouse is entitled to the entire estate. But if the decedent has a spouse and the decedent also has a descendant(s) who is not a lineal heir of the spouse, the spouse receives half of the estate. Finally, if the decedent has as at least one decedent and the surviving spouse has a descendant(s) who is not the lineal descendant of the decedent, the spouse receives half of the estate. (Note: FS 732.102 was recently revised, and this example only applies to the estates of decedents dying on an after October 1, 2011).
2. Per Stirpes
- Florida Statutes, F.S. 732.104, states that all property distributed to heirs or descendants passes "per stirpes". This means that the children or grandchildren receive portions of the estate depending on who is still alive.
For example, if a decedent leaves behind two children and no spouse, each child receives an equal portion of the intestate estate. However, if both of the decedent's children had two grandchildren, and one child preceded the decedent in death, the grandchildren of the dead child split their parent's share of the intestate estate. This means that the remaining child of the decedent receives half the estate, and each grandchild of the deceased child receives a quarter of the estate.
- As another example, if a decedent leaves behind three children and no spouse, each child receives an equal portion of the intestate estate. However, if one of the decedent's children had two grandchildren, and that child preceded the decedent in death, the grandchildren of the dead child again split their parent's share of the intestate estate. However, in this case the remaining children of the decedent receive 1/3 of the estate, and each grandchild of the deceased child receives 1/6 of the estate.
The information provided above is intended to provide a basic understanding of select laws of intestacy, but this does not constitute legal advice and it cannot substitute for a thorough review and determination of individual issues, situations and requirements with an attorney.
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