Written by attorney Marian Audrey Lindquist

Florida Intestate Succession: What happens when a person dies with no will?

Intestacy is a legislative will governed by Florida Statute §732.101. The most common manner intestacy arises is when a person passes without a will, but there are other ways. Intestacy exists if you have a will that does not dispose of all assets, such as specific bequests with no residuary clause, which is why every will should have a residuary clause. Intestacy also occurs if the will is not properly executed and there is no prior will. Intestacy can be evoked if a person has a will but a new relative has come into existence since the will was written (ex, new spouse) §732.301 and Solomon v. Dunlap, 372 So.2d 218 (Fla. 1st DCA 1979). Similarly, if a married couple has reciprocal wills and they divorce after the wills were executed the bequest to their former spouse is a nullity §732.507(2).

Beneficiaries inherit upon decedent’s death §732.101(2). This means, in theory, an heir inherits the moment decedent dies. In practical terms the heir does not receive the property until the estate is probated. Example, often an heir is living in an intestate decedent’s home, now theoretically their home, but it is titled in decedent's name because the estate was not probated. The expense of probate is sometimes an obstacle.

If a person dies intestate the State looks to the following persons, in the following order, to inherit.

If decedent was married at the time of death and had no surviving lineal descendents (children, grandchildren, great-grandchildren) the spouse receives the entire estate §732.102(1).

If decedent had a spouse and surviving lineal descendants who are all also lineal descendants of the spouse then the spouse receives the first $60,000. This $60,000 is evaluated on the date of distribution, not the date of death. This means under §732.101 you inherit on the date of death but the first $60,000 to a surviving spouse is determined on the date of distribution §732.102(2). The spouse then receives half the balance with the other half going to decedent’s (and the spouse’s) lineal descendants.

This is different from the way most wills are written. Wills made by couples who have only ever been married to each other are usually reciprocal meaning the spouses leave everything to the other and then to their children upon the death of the second. As a practical matter, in most first marriages spouses own their property jointly, which means no probate. If the spouses do not own their homestead jointly the surviving spouse is entitled to a life estate in it, §732.401(1), in addition to his or her other entitlements.

If decedent is survived by a spouse and lineal descendants and if even one of those lineal descendants is not descended from the surviving spouse the spouse gets half and the lineal descendants split the other half §732.102(3). However, the surviving spouse is still entitled to his or her homestead rights along with any property they owned jointly.

If decedent died with a will but there is a pretermitted spouse (decedent married after he or she made their will) the spouse receives an intestate share §732.301 and Solomon v. Dunlap, 372 So.2d 218 (Fla. 1st DCA 1979). An intestate share is larger than a spousal share (which is 30%) §732.2065.

If Decedent was not married at the time of death the estate passes to his or her lineal descendants §732.103(1) per stirpes. If there are no lineal descendants the estate passes to decedent’s parents, equally, or the survivor of them §732.103(2). This is one of the few statutory instances of per capita, rather than per stirpes, distribution. If decedent died and had no spouse and no living parents the estate passes to his or her brothers and sisters, per stirpes §732.103(3).

If decedent died and left no spouse, no parents, and no siblings then you take his or her estate and divide it in half. Then you go up to the level of grandparents and then you go down, ie, to grandparents, if none, then to aunts and uncles, if none, to cousins, with half of the estate going to the family of the maternal grandparents and half going to the family of the paternal grandparents §732.103(4).

If decedent died and there are no family members from grandparents down then you go to the family of decedent’s last spouse, treat the estate as if the spouse died intestate §723.103(5).

If you can still find no one to inherit and if the estate was open prior to December 31, 2004 and if any descendant of decedent’s great-grandparents were a holocaust survivor, then you can descend from great-grandparents §723.103(6). Otherwise you cannot go as far back as great-grandparentsto look for beneficiaries.

If there is still no one to inherit, the property goes to the State. This process is called escheat. Florida Statute §732.107 explains the escheat process. There is a misperception among the public that when they pass away the State takes their money. It’s not true. The Florida intestacy statute clearly looks far back to a person’s family and then to their spouse’s family to try to find a person to inherit. Nonetheless there are a substantial number of people in Florida with no family.

All intestate distribution is per stirpes and not per capita §732.401, except when you are dealing with parents inheriting. Per stirpes is latin and means “by the root". Per capita translates to “by the head". Example,

John dies. He has a will leaving everything to his children: Mary, Jessica and Chris.

Chris has two children and predeceases John, his father.

In per stirpes distribution Chris is the root and his children inherit his share.

In per capita distribution Chris’s share is divided between Mary and Jessica, because his head is not there to be counted.

When you have half-bloods, half-sisters and half-brothers, then half-bloods inherit half as much as whole blood §732.105.

If Afterborn Heirs are conceived within Decedent's lifetime, but born after his death, they inherit as if they were born during his life §732.106. The U.S. Military has made provisions for benefits for afterborn children of deceased servicemen conceived after their father's death, but Florida law does not allow after-conceived children to inherit. Astrue v. Capato, U.S. Supreme Court May 2012.

Adopted children are lineal descendants of their adoptive parents and their adoptive parents’ family. Adopted children are not descendants of their biological parents UNLESS they are adopted by a step-parent or close relative after the death of a natural parent §732.108(1). (This protects inheritance rights from grandparents of deceased parents.)

Virtual adoption ( formerly known as equitable adoption), is a common law cause of action that may be available to a person who wants to inherit an intestate share from a person who raised him or her, but was not his or her parent Sheffield v. Barry, 14 So.2d 417 (1943). The elements of equitable adoption are (1) an agreement to adopt between the natural parents and alleged adoptive parents; (2) performance by the natural parents by giving up custody; (3) performance by the child by living in the home of the alleged adoptive parents; (4) partial performance by the alleged adoptive parents in taking the child into their home and treating the child as their own; and (5) intestacy of the alleged adoptive parents Estate of Musil, 965 So.2d 1157 (Fla. 2d DCA 2007).

Out-of-Wedlock children are descendants of their mother and her family. They are descendants of their father and his family if: (1) the parents participated in a marriage ceremony either before or after their birth even if the ceremony is void; or (2) paternity is established by adjudication; or (3) paternity is acknowledged by the father in writing §732.108(2).

Debts to Decedent (Florida Statute §732.109). A debt owed to a decedent can not be charged against the intestate share of any person except the debtor. If the debtor does not survive the decedent, the debt does not exist.

Author’s Example, John lends his son Bill $100,000. John dies. The $100,000 debt is taken from Bill’s share such that his siblings receive more than he does. However, if Bill died before John the debt is over and cannot be taken from Bill’s children’s share.

Rights of Aliens Florida Statute §732.1101 gives aliens the same rights of inheritance as citizens. However, an alien cannot generally qualify as a personal representative in Florida, which does not affect their right to inherit, but does affect their ability to administer the estate. Aliens are also subject to substantially greater estate tax than U.S. citizens. They do not receive the same deductions as citizens. For example, U.S. citizens receive an unlimited marital deduction. There is no unlimited marital deduction for aliens. There is only one $60,000 deduction, the remainder is subject to estate tax.

Federal law prevents distribution to individuals in certain nations. These people cannot receive their inheritance. For example, because of the Cuban Assets Control Regulations (31 C.F.R. Part 515) unless and until a Florida court rules otherwise assets can not be distributed or transferred to a Cuban national residing in Cuba and must be deposited into a “blocked account". 1984 Op.Atty.Gen.Fla. 3.

Estate planning is important for everyone, but especially for non U.S.citizens.

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