Intestate Succession

Have you ever wondered what happens to your assets, like your home, car, or laptop, for instance, after you pass away? The answer is pretty simple if you have a valid estate plan in place – how your property will pass will go exactly how you desire in your Last Will and Testament or Trust. However, who inherits from you if you do not have a Last Will and Testament or Trust in place at the time of your death? This article will discuss the concept of intestate succession and will explain how your Florida estate planning attorney can help you ensure that your estate passes according to your wishes upon your death.

Under Florida law if you pass away without a valid estate plan in place, the choice as to who your assets go to upon your death is put in the hands of the State of Florida. The process of your assets passing according to Florida law, as opposed to passing in accordance with your estate plan, is called “intestate succession.” Essentially, with intestate succession, the State of Florida gets to decide where your property goes. The priority of who inherits in an intestate succession situation depends on your heir’s relationship to you. Your Florida estate planning attorney can help explain what members of your family are set to inherit from you should you pass away without a valid Last Will and Testament or Trust in place.

According to Section 732.102, Florida Statutes, a surviving spouse is the first to inherit from an intestate estate – with some exceptions. For instance, a surviving spouse is only entitled to inherit a decedent’s entire estate if the couple had no children (whether together or separate from each other) or if the married couple had children together. However, if either the decedent or surviving spouse had children from outside of their marriage, the surviving spouse would not be entitled to inherit the entire estate of the decedent. There are some exceptions to the rule, which is why it is important to consult with a Florida trusts and estates attorney to make sure you are fully aware of what could happen if you died without proper estate planning.

If a person dies without a spouse, you will then have to analyze Section 732.103, Florida Statutes, to find out just how your intestate estate will pass upon your death. Florida law states that in the even you pass away intestate and without a spouse, your estate will pass in the following order:

  1. To your children;
  2. If you have no children, then to your mother and father equally (or to their survivor);
  3. If your parents have not survived you, then your siblings (or your nieces and nephews);
  4. If your siblings have not survived you, then your estate will be split half to your father’s side of the family and half to your mother’s side of the family in the following order:
    1. To your grandparents equally (or to their survivor);
    2. If your grandparents did not survive you, then to your uncles and aunts;
    3. If your uncles and aunts did not survive you, then to any other relatives who have survived you.
  5. If still there are no relatives to claim your estate, it is possible that your estate will pass to the family of your last deceased spouse.

In the rare and remote chance that no one in the above list has survived you, it is likely that the State of Florida will have the opportunity to inherit your estate. Please note that the State of Florida would much rather your relatives inherit from you, no matter how distant they are from you, but if you are concerned about who inherits your assets upon your death, you should get in touch with a qualified estate planning attorney.

Please note that stepchildren and friends are not on Florida’s list of those would inherit from you without an estate plan. If it is your intention that stepchildren or a friend inherit from you, you should consider speaking with a Florida estate planning attorney. Also, there is no provision under the Florida intestate succession laws which take into account how close you are with those individuals who would inherit from you. This means that it is within the realm of possibility that an estranged family member could be in line to inherit your assets without your wishes being properly documented in accordance with Florida law.

You have worked hard to build your wealth – why allow it to pass according to the State of Florida’s wishes? Take the first step to preserving your wealth for generations to come by meeting with an estate planning attorney to help build out the plan that is going to ensure your assets pass according to your wishes.

Barreau Legal, PLLC is a Port St. Lucie based estate planning law firm which has the background and knowledge to craft a solid estate plan to help preserve your legacy for generations to come. If you have concerns about how your assets will pass when you die or keeping your estate out of probate, please reach out to Barreau Legal, PLLC for a free consultation at 772-236-5204 or