Dying Without a Will in Florida
Fla. Stat. § 732.101 et seq.
When a Florida resident dies without a will, the estate is distributed under Florida's intestate succession statutes — not by the family's preferences, and not necessarily as the decedent would have wished. The surviving spouse, children, parents, and siblings each have statutory shares determined by who else survives the decedent.
What it is
A person who dies without a valid will is said to have died "intestate." When that happens, Florida law — not the family — determines who inherits. The governing statutes are Fla. Stat. § 732.101 through § 732.111, which set out a precise hierarchy of heirs and the share each is entitled to receive.
Intestate succession applies only to assets that pass through the probate estate. Assets with non-probate transfer mechanisms — joint tenancy with right of survivorship, payable-on-death (POD) and transfer-on-death (TOD) designations, life insurance and retirement accounts with named beneficiaries, and most trust assets — pass according to those instruments regardless of intestacy. So the intestacy statutes only reach what's left.
Florida's intestacy rules are sometimes counterintuitive. They do not always match what a typical Florida family would expect. A surviving spouse does not necessarily inherit everything. Stepchildren do not inherit from a step-parent. Children of a prior marriage can dramatically change the result. The Florida homestead, exempt personal property, and family allowance under Fla. Stat. §§ 732.401–732.403 sit on top of these rules and modify them further.
Florida's Intestate Succession Hierarchy
Under Fla. Stat. § 732.102 and § 732.103, the order of inheritance when a Florida resident dies without a will is roughly as follows (subject to homestead, exempt property, and elective-share rules):
- If survived by a spouse and no descendants: spouse takes the entire intestate estate (§ 732.102(1)).
- If survived by a spouse and descendants — all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendants: spouse takes the entire intestate estate (§ 732.102(2)).
- If survived by a spouse and descendants — one or more of whom are NOT descendants of the surviving spouse, OR the surviving spouse has descendants who are not descendants of the decedent: spouse takes one-half; descendants share the other half per stirpes (§ 732.102(3)–(4)).
- No surviving spouse, but descendants: descendants share the entire estate per stirpes (§ 732.103(1)).
- No spouse and no descendants: parents (§ 732.103(2)).
- No spouse, descendants, or parents: siblings and the descendants of any deceased siblings, per stirpes (§ 732.103(3)).
- No spouse, descendants, parents, or siblings: half goes to maternal kindred, half to paternal kindred (§ 732.103(4)–(5)).
If no qualifying heir can be located, the estate "escheats" to the State of Florida under Fla. Stat. § 732.107 — though in practice this is rare, because Florida law looks deep into the family tree before declaring an estate ownerless.
Intestacy vs. Having a Florida Will
| Aspect | Dying Without a Will in Florida | With a Valid Will |
|---|---|---|
| Who decides where assets go | Florida statute — not the family | The decedent's expressed wishes |
| Stepchildren | Do not inherit (unless legally adopted) | May be specifically named |
| Unmarried partner | Does not inherit | May be specifically named |
| Charitable gifts | Not possible | Can be specified |
| Personal Representative selection | Court selects per § 733.301 priority | Decedent nominates |
| Guardian for minor children | Court selects | Parents nominate in will |
What Probate Looks Like for an Intestate Florida Estate
An intestate estate goes through the same Formal or Summary Administration procedures as a testate estate — but with the heirship determined by statute rather than by a will. The estate is generally administered in the probate division of the circuit court for the county where the decedent resided.
- Step 1: Confirm the decedent left no will. Search safe-deposit box, file cabinets, attorney files, and ask close relatives. Florida courts do not lightly conclude a person died intestate.
- Step 2: Identify the statutory heirs. This sometimes requires genealogical research — particularly when the decedent had a complex family history, prior marriages, or unknown children.
- Step 3: Apply for Letters of Administration. Under Fla. Stat. § 733.301, priority among potential Personal Representatives in an intestate estate runs to (a) the surviving spouse, (b) the person selected by a majority in interest of the heirs, (c) the heir nearest in degree.
- Step 4: Standard probate process unfolds — inventory, creditor notice, claim period, payment of debts, distribution. The distinguishing feature is that the final distribution is to statutory heirs in statutory shares.
- Step 5: Special attention to the Florida homestead. Homestead inheritance is governed separately by Fla. Const. art. X, § 4 and Fla. Stat. § 732.401 — and often does not follow the intestate-succession order.
Is an attorney required?
Yes, in nearly every case. Florida Probate Rule 5.030 requires attorney representation for the Personal Representative in Formal Administration regardless of whether there is a will. Intestate matters frequently involve nuanced questions about heirship — particularly with blended families, prior marriages, half-siblings (Fla. Stat. § 732.105), adopted children (§ 732.108), or non-marital children (§ 732.106). Misidentifying an heir or misapplying the per-stirpes distribution can produce serious downstream liability for the Personal Representative.
Frequently Asked Questions
Does the surviving spouse get everything if there's no will?
Only sometimes. Under Fla. Stat. § 732.102, the spouse takes everything if the decedent had no descendants, OR if the only descendants are also descendants of the surviving spouse and the spouse has no other descendants. If there are children from a prior marriage on either side, the spouse takes one-half and the descendants share the other half per stirpes.
Do stepchildren inherit from a step-parent under Florida intestate succession?
No. Stepchildren who were not legally adopted by the decedent have no statutory inheritance rights under Florida intestate law. This is a common surprise for blended families and is one of the most important reasons to have a will if you want stepchildren provided for.
What about an unmarried partner or fiancé?
Under Florida intestacy, an unmarried partner — regardless of length of relationship, financial intermingling, or status as a domestic partner under municipal registries — has no statutory inheritance rights. Only a legal spouse counts. Without a will, an unmarried partner inherits nothing through probate.
What happens to the Florida homestead in intestacy?
Florida homestead inheritance is governed by Fla. Const. art. X, § 4 and Fla. Stat. § 732.401. If the decedent is survived by a spouse and minor children, the homestead descent rules are highly restrictive — minors cannot be devised the homestead at all, and the spouse takes a life estate (or, by election under § 732.401(2), a one-half tenancy in common) with the descendants taking the remainder. See our [[homestead-property]] page for the full analysis.
Do half-siblings inherit the same as full siblings?
No. Under Fla. Stat. § 732.105, when collateral relatives (siblings, or descendants of siblings) inherit, half-blood relatives take half the share that whole-blood relatives take. The statute attempts to roughly approximate the closer family relationship.
Can the family agree to override the intestate distribution?
Yes, with caveats. Adult heirs may enter into a written family settlement agreement that redirects shares — but it has tax and procedural implications, every affected heir must consent, and minors cannot effectively consent without court approval. It is materially easier and cheaper to have a will in the first place.
The information on this page is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Florida law changes. Consult a licensed Florida attorney for guidance specific to your matter.
Facing probate of a Florida estate with no will?
We have guided families through Florida intestate administration since 1928. Call (407) 843-0430 or schedule a consultation online to map the heirs and chart the cleanest path forward.
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