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Florida Intestate Succession: What Happens When There Is No Will
Our attorneys spent years working inside Florida’s probate courts before opening this firm, and one of the most common calls we get starts the same way: “My father died, we can’t find a will, what happens now?” Florida has an answer for that exact situation. When someone dies without a valid will, state law, not the family, decides who inherits. That law is called intestate succession, and it’s laid out in Florida Statutes Chapter 732.
What Is Intestate Succession in Florida?
Intestate succession is the default inheritance plan the Florida legislature wrote for anyone who dies without a will. It applies whether the decedent never got around to writing one, or a will exists but is found invalid. The estate still goes through probate; the difference is that a judge distributes it according to a fixed statutory formula instead of the decedent’s own instructions.
Surviving Spouse Rights Under Florida Law
A surviving spouse’s share depends entirely on whether the decedent left descendants, and whose descendants they are. Under Florida Statutes Section 732.102, if the decedent had no children or grandchildren, the spouse inherits the entire estate.
If the decedent had descendants and all of them are also the surviving spouse’s descendants, and the spouse has no descendants from outside the marriage, the spouse still inherits everything. That rule exists because the legislature assumes the surviving spouse will provide for the shared children anyway.
The split changes when the family is blended. If the decedent has a child from a prior relationship, or the surviving spouse has children the decedent never adopted, the spouse receives one half of the intestate estate and the decedent’s descendants divide the other half.
Children’s Shares of an Intestate Estate
When there’s no surviving spouse, the decedent’s children inherit the entire estate in equal shares. Adopted children have the same inheritance rights as biological children under Florida law. Stepchildren who were never legally adopted do not inherit unless the decedent’s will said so, and there is no will here, so they’re excluded entirely.
Children born outside marriage inherit from their mother automatically. To inherit from their father, paternity must be established, either through marriage to the mother, acknowledgment, adjudication, or another method recognized under Florida Statutes Section 732.108.
Per Stirpes Distribution Explained
Florida divides an intestate estate among descendants “per stirpes,” a term defined in Florida Statutes Section 732.104. In practice, this means the estate is split into equal shares at the first generation with living members. If one of the decedent’s children died before the decedent but left children of their own, that grandchild steps into the deceased child’s spot and receives that share.
For example, if a decedent had three children and one predeceased them leaving two children, the estate splits into three equal shares. Two surviving children each take a full share, and the two grandchildren split their deceased parent’s share between them.
Extended Family: Who Inherits With No Spouse or Children
If there’s no surviving spouse or descendants, Florida Statutes Section 732.103 sends the estate up and out through the family tree. Surviving parents inherit next, in equal shares if both are living, or entirely to the survivor.
With no surviving parents, the estate passes to the decedent’s siblings and the descendants of any deceased siblings, again per stirpes. If none of those relatives survive, the law splits the estate in half between the decedent’s paternal and maternal grandparents and their descendants.
In the rare case where no relatives can be located within the degree of kinship the statute recognizes, the estate escheats to the State of Florida.
Florida Intestate Succession Chart
This chart summarizes who inherits under Florida Statutes Chapter 732 when there is no will, based on who survives the decedent.
| Who Survives the Decedent | Who Inherits |
|---|---|
| Spouse, no descendants | Spouse inherits the entire estate |
| Spouse and descendants, all shared with the spouse | Spouse inherits the entire estate |
| Spouse and descendants, some not shared with the spouse | Spouse inherits half; descendants share the other half, per stirpes |
| Descendants, no surviving spouse | Descendants inherit the entire estate, per stirpes |
| No spouse or descendants; parents survive | Parents inherit equally, or the survivor inherits all |
| No spouse, descendants, or parents | Siblings and descendants of deceased siblings inherit, per stirpes |
| No spouse, descendants, parents, or siblings | Half to paternal kindred, half to maternal kindred |
| No survivors within the statutory degree | Estate escheats to the State of Florida |
Homestead Rules for Intestate Estates
Florida’s homestead protections change the normal intestacy formula for a primary residence. Under Florida Statutes Section 732.401, if the decedent is survived by a spouse and one or more descendants, the spouse receives a life estate in the homestead, and the descendants receive a vested remainder interest, per stirpes.
The surviving spouse can instead elect to take an undivided one half interest in the homestead as a tenant in common with the descendants. That election must be filed within six months of the decedent’s death, and it’s a decision worth discussing with an attorney before the deadline passes. If the decedent left a spouse but no descendants, the spouse inherits the homestead outright as part of the regular intestate share.
Who Becomes Personal Representative Without a Will
Someone still has to open the estate, notify creditors, and distribute assets, and Florida Statutes Section 733.301 sets the order of priority for that role when there’s no will naming an executor. The surviving spouse has first priority to serve as personal representative.
If there’s no spouse, or the spouse doesn’t want the job, the heirs can agree by majority interest on who should serve. If the heirs can’t agree, the court appoints whichever heir is nearest in degree of kinship to the decedent, and if more than one heir is equally close, the judge decides among them.
Florida also requires most personal representatives to be either a Florida resident or a close relative of the decedent, and non-resident non-relatives generally cannot serve. For a full walkthrough of the administration itself, from filing the petition to closing the estate, see our complete guide to Florida probate.
The Probate Process Without a Will
An intestate estate goes through the same court system as an estate with a will, either formal administration or, for smaller estates, summary administration. The main practical difference is that the personal representative works from the statutory shares above instead of a decedent’s written wishes, and the court often takes a closer look at heirship to confirm who the legal heirs actually are.
That heirship determination can add time and cost compared to an estate with a clear will, particularly when relatives are scattered, estranged, or hard to locate. We handle intestate administrations statewide for a flat fee, and you can see current pricing on our flat-fee probate page.
Avoiding Intestate Succession
Every rule above is a default, not a preference. A validly executed Florida will lets you name your own beneficiaries, choose your own personal representative, and leave specific property to specific people regardless of blood relation. If you’d rather make these decisions yourself than leave them to Chapter 732, our estate planning guide walks through wills, trusts, and the documents most Florida families need.
Frequently Asked Questions
What happens if you die without a will in Florida?
Your estate passes under Florida’s intestate succession law, Florida Statutes Chapter 732, which distributes assets to your closest surviving relatives in a fixed order: spouse, descendants, parents, siblings, and more distant kin.
Does a spouse automatically inherit everything in Florida if there’s no will?
Only if the decedent had no descendants, or had descendants exclusively with the surviving spouse and the spouse has no descendants from elsewhere. If either spouse has children from outside the marriage, the spouse inherits half and the descendants inherit the other half.
What is per stirpes distribution in Florida?
It’s the method Florida uses to divide a share among descendants when one of them died before the decedent. The deceased descendant’s children split their parent’s share equally, rather than that share passing to surviving siblings.
Who becomes personal representative if there is no will in Florida?
The surviving spouse has first priority under Florida Statutes Section 733.301. Without a spouse, the heirs can agree on a candidate by majority interest, and if they can’t, the court appoints the heir nearest in degree.
Can a surviving spouse and children both inherit under Florida intestate law?
Yes, when the family is blended. If the decedent has descendants who are not also the spouse’s descendants, or the spouse has descendants from outside the marriage, both the spouse and the descendants inherit shares of the estate.
What happens to a homestead if the owner dies without a will in Florida?
A surviving spouse receives a life estate in the homestead with descendants taking the remainder, unless the spouse elects an undivided half interest as tenant in common within six months of death. A spouse with no descendants inherits the homestead outright.
Do unmarried partners inherit under Florida intestate succession law?
No. Florida intestate succession only recognizes legal spouses and blood or adoptive relatives. An unmarried partner, no matter how long the relationship lasted, has no inheritance rights without a will, trust, or beneficiary designation naming them.
What happens to a Florida estate if there are no surviving relatives?
If no relatives can be found within the degree of kinship recognized by Florida Statutes Section 732.107, the estate escheats to the State of Florida.
How long does probate take without a will in Florida?
Timelines vary with estate size and how quickly heirs can be identified, but an intestate formal administration commonly takes several months longer than an estate with a clear will, mainly due to the added heirship determination.
Can you avoid intestate succession in Florida?
Yes. Executing a valid will, or placing assets in a revocable trust with named beneficiaries, overrides the default statutory shares and lets you decide who inherits.
Sorting out who inherits without a will can get complicated fast, especially with blended families or homestead property involved. Contact us for a free consultation, and we’ll walk you through exactly how Chapter 732 applies to your family.