INTESTACY
General Information
In the simplest of probate terms, people can die two ways: intestate (without a Will) and testate (with a Will). This section deals with the former. I specifically consider only lineal descendants and basic collateral heirs. The statutes will tell you when these and other situations come into play.
The statutes and case law I have included specifically reference intestacy. However, they are not the only pertinent rules associated with probate and vigilance needs to be exercised on a case by case basis.
Also, don't shoot the messenger, but there is math involved. While I do apologize for bringing up what can be a painful topic, with Intestacy Statutes I don't have much choice in the matter.
Who, What, Why and Where (Maybe)
When a person dies without a Will, Title XLII (Estates and Trusts), §§ 732.101 - 732.111 (Part I: Intestacy) of the Florida Statutes kick in. These Intestacy Statutes ("Statutes") define what probate assets are and what you can do with them. They also define who may inherit from an estate. The people who inherit via the Statutes are known as "Heirs-at-Law" ("Heirs") (see graphic) and include lineal descendants (i.e., children, grandchildren, etc.), ascendants (i.e., parents and grandparents), and collateral kindred (i.e., brothers, sisters, and cousins). The first step is to determine who the heirs are and the second is to determine what they are entitled to. § 732.102 describes what a Surviving Spouse ("Spouse") is entitled to and § 732.103 provides the order of inheritance (i.e., who inherits when) if there is no Spouse or after the Spouse has taken his/her share of the estate.
Because there is no Will, as part of the seven Spousal Protections, a Surviving Spouse is given preference both as the Personal Representative of the estate and priority of inheritance. A Spouse can and will inherit either 50% or 100% depending on the circumstances. Generally, this can only be challenged if the couple was divorced at the time of the Decedent's death or if the Surviving Spouse caused the Decedent's death.
If a Decedent has no children, then the Spouse will receive 100% of the estate. If a Decedent and Spouse only have children with each other, then the Spouse will still take 100%. However, if a Decedent has a child not with the Spouse, or has a child with the Spouse and the Spouse has a child not with the Decedent, then the Spouse only takes 50%. The theory behind this dichotomy appears to be that a Spouse will not treat his/her own children differently (i.e., arbitrarily disinherit one), while in a situation where there are "other" children involved, then there is a concern that the Spouse will deprive the blood-heirs of the Decedent of their respective inheritances (especially if the Spouse dies intestate, too).
For example, if the Spouse always received everything and a Decedent only had children with the Spouse and the Spouse died intestate, then the children would still inherit their full-shares and there would be no visible difference between this situation and the Statutes. However, if the Decedent had children from a prior marriage and the Spouse received everything and died Intestate, then the Spouse's heirs would receive the entire estate and the children from the previous marriage would be effectively disinherited because (unless the Spouse had adopted them) the children would have no legal claim on the Spouse's estate, even though that estate included the children's parent's. Again, if the Decedent had a child with the Spouse and the Spouse had three children of his/her own and the Spouse died intestate, then the Decedent's child would only inherit 1/4 of the estate and the Spouse's other children would inherit 3/4 of an estate that prior to the Decedent's death they had no claim to.
However, under the Statutes, the results are quite different. In the first instance, the net result is the same (i.e., the children still inherit everything). The real difference can be seen in the second and third examples. In the second example, the children would inherit 50% of their parent's estate and the Spouse would inherit the remaining 50%. In the last example, because of the Spouse's other children, he/she would inherit 50% of the property and the child with the Decedent would inherit the rest. Without these statutory quirks, people would be deprived of their rightful inheritances; with the quirks, this is effectively prevented from happening.
If there is no Spouse and there are no lineal descendants, then the next Heirs listed in Fla. Stat. § 732.103 come into play.
Once it is determined who the heirs of an Intestate Estate are, the property then descends "per stirpes." Basically, this means that the estate is divided equally amongst a specific class. If a member of that class dies before the Decedent, that member's share is then divided amongst the rest of the class, unless that person has lineal descendants of his/her own. If the member has lineal descendants, then his/her share is divided equally amongst them. For example, a single mother has three children (Abigail, Benjamin, and Chelsea) and dies intestate. If at the time of her death Benjamin has died, then Abigail and Chelsea split their mother's estate 50/50. However, if Benjamin predeceases his mother, but is survived by three children, then Abigail and Chelsea each receive 1/3 of the estate and Benjamin's children each receive 1/9 (i.e., they split their father's 1/3 share equally amongst themselves and 1/3 of 1/3 = 1/9).
This is all further complicated by the "Half-Blood" rule ("HBR"), Fla. Stat. § 732.105. Fortunately, the HBR only applies to collateral heirs. It dictates that if people are inheriting via the Statutes, are not lineal descendants, and have only one parent in common with the Decedent, then the whole-blood relations inherit twice as much as the half-blood relations.
For instance, if Abigail, Benjamin, and Chelsea all have the same parents and Abigail dies intestate after her mother and has no lineal descendants, then Benjamin and Chelsea inherit her estate equally. However, if Benjamin and Abigail were from their mother's first marriage and Chelsea was from their mother's second, then Chelsea would be Abigail's half-sister (i.e., a half-blood relation) and Benjamin would inherit twice as much of Abigail's estate as she (i.e., Benjamin's share would be 2/3 and Chelsea's 1/3).
To determine portions of an estate involving half-blood relations, the number of parents shared with the Decedent by each Heir is added together and then each half-blood relation gets one of those shares and the whole blood relation gets two [i.e., Benjamin has two parents in common with Abigail and Chelsea has one. So, the denominator becomes three (2 parents + 1 parent = 3 shares) and Benjamin receives 2 shares and Chelsea receives 1]. The HBR does not apply, however, if everyone is a half-blood relation. So, if Abigail was from their mother's first marriage and Benjamin and Chelsea were both from their mother's second, then they would both be half-siblings and would inherit equally from Abigail.
While the Statutes tend to yield complicated results, they do try and address the oddities of inheritance by intestacy and encourage dying testate. Because, when all's said and done, if there is no Will and there are no Heirs under the Statues, then the Decedent's entire property escheats to the State of Florida and can do no more.
HOMESTEAD
When Homestead meets the Intestacy Statutes, things get a bit more squirrelly ('twere that possible). While there are certain moments when Homestead will descend per the Intestacy Statutes ("Statutes"), it is not a probate asset, the way the rest of the estate is. As a result, though someone is an "Heir" as defined in the 732 sections of the Statutes, that does not mean that the person is entitled to inherit the property. For instance, if a grandparent dies and leaves an adult child and a grandchild, the grandparent can leave the Homestead property to the grandchild without the property losing its exemption. The reason it doesn't lose its exemption is that the person receiving the property is an "Heir-at-Law" ("Heir") under the Statutes. However, the reason the adult child doesn't inherit the property first (instead of the grandchild) is that it has been devised and it is not a probate asset [how a piece of property can be "devised" (which means it has to go through probate) and still not be a "probate asset" (which means that is not subject to probate) is still beyond me!].
Because of the Constitutional restrictions on Homestead, the Statutes do not come into play unless (1) there is a minor child; (2); there is no minor child, Spouse, nor devise of the Homestead property, but there are Heirs; and (3) there is no minor child nor a Spouse, but there is a devise of the Homestead.
In the first instance, the Statutes define how 100% or 50% of the property is split amongst descendants in being at the time of the Decedent's death, depending on whether or not the Spouse elects to take a life-estate or 50% of the property in fee simple.
In the next case, the Statutes are predominant because they define who the Heirs are and dictate how the property is distributed to those Heirs.
In the final situation, the Statutes determine whether or not the Homestead exemption remains intact. For example, if a person to whom the property is devised is an Heir, then that person inherits the property and it cannot be sold to settle the debts of the Decedent's estate. However, if the person inheriting is a friend, then the exemption disappears and the property can be sold to satisfy the Decedent's estate's creditors. This distinction is drawn because Homestead is intended to protect the family of a Decedent, not the Decedent's friends.
Basically, the Intestacy Statutes are blended into the Homestead Analysis, but do not form the analysis itself. As a result, one statute will apply and another will not, and a statute that applies one minute, won't the next. As I said: squirrelly!
MANUALS / TREATISES / TEXTBOOKS
Basic Estate Planning in Florida : KFF 140.B372 2014
This book is available at Ave Maria School of Law Library.
Estate Planning in Florida -- Florida Practice Series
§§ 19.22-19.28 - Relationship Between Homestead and Intestacy : Discusses how Homestead is and isn't affected by Wills and what happens when Homestead is improperly devised; topics include: minor children vs. lineal descendants, spouse life-estates, and devise and minor children.
Chapter 22A - Intestate Succession : §§ 22.1-22.11; topics include: passing and vesting of assets, shares of spouse and others, per stirpes, half-blood and after-born heirs, adopted and born out of wedlock heirs, and slayer statutes.
Florida Estate and Probate Practice : KFF 140.L58 2005
This resource is available at Ave Maria School of Law Library.
§ 33.21 Intestate Succession : Discussion of the Uniform Probate Code and how it relates to intestacy.
Florida Jurisprudence 2d: Abandoned, Lost, and Escheated Property : Ave Maria School of Law
§ 1 Escheat of Property to State, Generally; Definition of "Escheat" : Defines "escheat" and its relation to Due Process of Law.
§ 5 Property of Decedent Without Heirs : Provides a discussion about how and why property without heirs escheats to the State.
Florida Jurisprudence 2d: Decedent's Property: Intestate Succession : Ave Maria School of Law
§ 10 Right to Inherit; Expectancy : Discussion of when and when not a person has a "right to inherit."
§§ 12-19 Definitions and Distinctions : Definitions in sections include: descent, inheritance, succession, heirs, next of kin, descendants, child, and distributive share.
Florida Jurisprudence 2d: Estate Planning and Probate
Research References : Links to particular Westlaw KeyCites.
Florida Probate Code Manual : Ave Maria School of Law
Chapter 01 - Intestate Succession : This chapter provides a general overview of Florida's intestate laws and explains how they are generally applied.
Chapter 18 - Probate Forms : List of forms for both single and multiple petitioners for intestate Summary Administration.
Florida Will and Trust Forms Manual : Ave Maria School of Law
§ 101.05 - Rights of Family Member that Must be Considered in Estate Planning : Subsection 1 deals specifically with the intestate share of a Pretermitted Spouse.
Florida Wills, Trusts, and Estates : ISBN: 978-1-61163-869-1
Ch. 2: Intestacy : Provides an overview of the issues of Intestacy and examples of how the statutes actually operate.
Litigation Under the Florida Probate Code : Ave Maria School of Law
Chapter 2 - Intestate Succession : Overview of the chapter; topics include: Determination of Beneficiaries, Inheritance Rights, Agreements to Succession, and Genealogical Chart.
§ 2.2 - Determination of Beneficiaries : Discussion of how courts decide whether or not a person is a beneficiary under the Florida Intestacy Statutes and Common Law; topics include: children born out of wedlock, adoption, pretermitted child, after-born heirs, half-blood inheritance, disqualification of killer of decedent (i.e., slayer statutes), aliens, marriage, and procedures and petitions for determining heirs.
§ 2.9 - Genealogical Chart : This chart is displayed on this page.
Manual for Florida Legal Secretaries : Ave Maria School of Law
§ 5A - Probate : Overview of Probate Section; includes links to required forms.
§ 5A.8 - Formal Administration : Provides checklist for basic estate administration; Subsection 7 is about how to file an estate without a will.
Appendix A : Forms used in Florida Probate; includes forms for both single and multiple petitioners for intestate Summary Administration.
Practice Under Florida Probate Code : Ave Maria School of Law
§ 11.2 - Intestate Estates : Overview of Florida Intestate Rules and Duties; topics include: locating heirs, who may and may not inherit (i.e., slayer statutes), termination of parental rights, per stirpes, escheat, and will discovered after probate closed.
NOTE: At this time, this title doesn't appear to have an index or table of contents; to find other sections you have to search for "1-11 Practice Under Florida Probate Code" in LexisNexis.
LAW REVIEW / LAW RESOURCE ARTICLES
Column: Intestacy in the Context of Estate Planning in Florida : 76 Fla. Bar J. 53 (2002)
This articles provides an in-depth discussion of Florida's Intestacy Laws and provides guidance on when to apply the rules and when to avoid them if possible; while some of the rules may have changed since the article was written, its analysis is still useful.
Expanding the Statutory Definition of "Child" : 17 Elder L.J. 401 (2010)
This article advocates an expansion of the term "child" as it relates to intestacy statutes, so as to protect the relationship between grandparent and grandchild in the modern world.
Honoring Probable Intent in Intestacy: An Empirical Assessment of the Default Rules and the Modern Family : 42 ACTEC L.J. 341 (2017)
This is a study about how inter-familial relations translate into the world of estates.
Intestacy, Wills and Intent: A Short Comment on Wright and Sterner : 43 ACTEC L.J. 339 (2017)
This article provides a critique of Wright and Sterner's "Honoring Probable Intent in Intestacy: An Empirical Assessment of the Default Rules and the Modern Family" and considers whether or not expanding intestacy laws would address the issues created by modern society.
Intestate Succession in Florida : Valerie Keene (2019)
Provides an in-depth, easy to follow overview about Intestacy and what can and cannot pass via the Intestacy Statutes (including the Spousal Share).
GENERAL STATUTES
Fla. Stat. § 732–Intestate Succession : Online Sunshine ; LexisNexis ; Westlaw
Florida's Statutes relating to intestacy.
Fla. Stat. § 732.101–Intestate Estate : Online Sunshine ; LexisNexis ; Westlaw
What property forms the Intestate Estate.
Fla. Stat. § 732.104–Inheritance Per Stirpes : Online Sunshine ; LexisNexis ; Westlaw
Method by which Intestate Estates pass to heirs.
Fla. Stat. § 732.107–Escheat : Online Sunshine ; LexisNexis ; Westlaw
What happens when no heirs under the intestacy statutes.
SPECIAL RULES STATUTES
Fla. Stat. § 732.102–Spouse's Share of Intestate Estate : Online Sunshine ; LexisNexis ; Westlaw
Share of estate that surviving spouse receives.
Fla. Stat. § 732.103–Other Heirs : Online Sunshine ; LexisNexis ; Westlaw
How portion of Intestate Estate that does not go to a surviving spouse is distributed.
Fla. Stat. § 732.105–Half-Blood : Online Sunshine ; LexisNexis ; Westlaw
How half-blood siblings inherit from an Intestate Estate.
Fla. Stat. § 732.106–Afterborn Heirs : Online Sunshine ; LexisNexis ; Westlaw
How heirs born after decedent dies inherit from an Intestate Estate.
Fla. Stat. § 732.108–Adopted Persons and Person Born Out of Wedlock : Online Sunshine ; LexisNexis ; Westlaw
How people who are adopted or to unmarried parents inherit from an Intestate Estate.
Fla. Stat. § 732.1101–Aliens : Online Sunshine ; LexisNexis ; Westlaw
Rights of non-United States citizens to inherit under Florida's Intestacy Statutes.
ADDITIONAL STATUTES
Fla. Stat. § 732.1081–Termination of Parental Rights : Online Sunshine ; LexisNexis ; Westlaw
Intestacy inheritance rights when parental rights rights have been terminated.
Fla. Stat. § 732.109–Debts to Decedent : Online Sunshine ; LexisNexis ; Westlaw
How debts owed to the decedent relate to intestate shares.
Fla. Stat. § 732.111–Dower and Curtesy Abolished : Online Sunshine ; LexisNexis ; Westlaw
Abolition of Dower and Curtesy.
INTESTACY ISSUES
Share of Surviving Spouse
Hall v. Maal, 32 So. 3d 682 (Fla. 1st DCA 2010). : Court Listener ; LexisNexis ; Westlaw
Holding : Submission to a marriage ceremony, without compliance with Florida's other statutory requirements (i.e., applying for a marriage license, etc.) does not constitute being married; in order for equity to step in, there must be some compliance with law.
In re Estate of Butler, 444 So. 2d 477 (Fla. 2d DCA 1984). : Google Scholar ; LexisNexis ; Westlaw
Holding : When a couple is married, believe they have a divorce and act upon it (i.e., one or both of the couples believe that they have married someone else afterwards), the Survivor of the "divorced" couple is not entitled to the spousal protections.
Lineal Descendants
Astrue v. Capato, 132 S. Ct. 2021 (2012). : Google Scholar ; LexisNexis ; Westlaw
Holding : Children born after Decedent's death by means of artificial insemination do NOT inherit under Intestacy Statutes; they inherit only if they are provided for in a Will.
Estate of Huskea v. Doody, 391 So. 2d 779 (Fla. 4th DCA 1980). : Court Listener ; LexisNexis ; Westlaw
Holding : The legislation in effect at the time of the Decedent's death governs how the property passes to heirs-at-law.
In re Estate of Broxton, 425 So. 2d 23 (Fla. 4th DCA 1982). : Google Scholar ; LexisNexis ; Westlaw
Holding : The statutory remedy (found in Fla. Stat. 732.108) is only available to children born out-of-wedlock; children born in-wedlock are presumed to be the child of the husband; the standard for overcoming this presumption is "clear, strong, and unequivocal."
In re Estate of Kanevsky, 506 So. 2d 1101 (Fla. 3d DCA 1987). : Google Scholar ; LexisNexis ; Westlaw
Holding : When a child is legally adopted, that child becomes as a blood descendent of the adopter and the adopter's family, and inherits from an intestate estate as a true-blood relative.
Williams v. Estate of Pender, 738 So. 2d 453 (Fla. 1st DCA 1999). : Court Listener ; LexisNexis ; Westlaw
Holding : The elements of an equitable adoption are: (1) an agreement to adopt between the natural parents and alleged adoptive parents, (2) performance by the natural parents and alleged adoptive parents, (2) performance by the child by living in the home of the alleged adoptive parents, (4) partial performance by the alleged adoptive by bringing child into their home and treating child as their own, and (5) alleged adoptive parents died intestate; each element of an equitable adoption must be proven by a "clear and convincing" standard.
Half-Blood Heirs
Estes v. Nicholson, 23 So. 490 (Fla. 1898). : Florida Wills, Trusts, and Estates ; LexisNexis ; Westlaw
Holding : When an estate passes to the Paternal and Maternal lines, the "Half-Blood" rule applies within each respective line, but does not apply across the lines (i.e., if a Decedent's mother had a whole-sister and a half-sister, then the whole-sister would get twice as much as the half. However, if the mother had a half-sister and the father had a whole-sister, then each would take the full-share entitled to the Decedent's paternal/maternal lines respectively without considering the "Half-Blood" rule.).
Paternal and Maternal Kindred / Escheat to the State
In re Estate of TIm (State v. Rudawski), 180 So. 2d 161 (Fla. 1965). : Google Scholar ; LexisNexis ; Westlaw
Holding : Simply because someone is related by blood to the Decedent does not entitle that person to a share in the estate; to be "entitled" to a share a person must qualify under the Florida Intestacy Statutes as an "heir-at-law;" if no one is "entitled" to the estate, then it escheats to the State of Florida.
COURT RULES
Florida's Court Rules : Florida Bar Association ; LexisNexis ; Westlaw
These links go to listings of the different Court Rules in Florida; Rule Sets include: Florida Probate Rules, Florida Rules of Civil Procedure, and Florida Rules of Judicial Administration.
Florida Probate Rules : Florida Bar Association ; LexisNexis ; Westlaw
These are the official rules for Probate Court in Florida; the rules enumerated in this section can be found for free by clicking on the Florida Bar Link associated with this topic.
R. 5.200: Petition for Administration : LexisNexis ; Westlaw
Requirements for a petition requesting administration of an estate; an intestate estate petition must include a statement of petitioner's lack of knowledge about a Will or Codicil, or a statement explaining why a Will or Codicil is not being probated.
R 5.240: Notice of Administration : LexisNexis ; Westlaw
The Personal Representative is required to serve notice of the estate's administration; besides the normal requirements, the notice must specify whether or not the estate is testate or intestate.
R. 5:340: Inventory : LexisNexis ; Westlaw
An inventory of Decedent's estate must be filed with the court; with an intestate estate, the Personal Representative must also send a copy of the inventory to the surviving spouse, an heir-at-law, or any other interested party who requests it in writing.
R. 5.342: Inventory of Safe Deposit Box : LexisNexis ; Westlaw
An inventory of any safe deposit box belonging to the Decedent must be filed with the court; with an intestate estate, the Personal Representative must also send a copy of the inventory to the surviving spouse, an heir-at-law, or any other interested party who requests it in writing.
R. 5.385: Determination of Beneficiaries : LexisNexis ; Westlaw
If the Personal Representative is unable to determine who the beneficiaries are, then he/she may petition the court for assistance.
R. 5.470: Ancillary Administration : LexisNexis ; Westlaw
With an intestate estate, in requesting Ancillary Administration, the petition must show the authority of the personal representative to act.
R. 5.530: Summary Administration : LexisNexis ; Westlaw
Besides the usual requirements, a petition for Summary Administration in an intestate estate must include a statement that "after the exercise of reasonable diligence each petitioner is unaware of any unrevoked wills or codicils."
FORMS
Florida Estates Practice Guide : Ave Maria School of Law
11.202: Petition for Family Administration--Intestate : Petition for Family Administration of an intestate estate; allows for Homestead property.
11.203: Order of Family Administration--Intestate : Order determining whether or not Family Administration will be allowed.
11.206: Petition for Summary Administration--Intestate : Petition for Summary Administration of an intestate estate; allows for Homestead property.
11.207: Order of Summary Administration--Intestate : Order determining whether or not Summary Administration will be allowed.
11.209: Disposition of Personal Property Without Administration : Method of disposing of the property of an Intestate Estate.
17.201: Order Determining Heirs and Their Shares : Order stating who the heirs of an estate are.
33.201: Petition for Issuance of Letters--Intestate Estate : Petition requesting that a person may be appointed Personal Representative for a Decedent whose status is unknown.
35.201: Petition for Authorization to Sell Real Property : Request by Personal Representative to sell real property on behalf of the estate.
35.202: Order Authorizing Sale of Real Property : Order allowing the Personal Representative to sell real property on behalf of the estate.
36.201: Petition to Determine Beneficiaries : Petition requesting that the court determine who the beneficiaries of an estate are and their respective shares.
36.202: Order Determining Beneficiaries : Order declaring who the beneficiaries to an estate are and their respective shares.
This is the Westlaw Form Search Engine; it searches across all of their form books.
Florida Jurisprudence 2d.: Forms : KFF 80.F56 1977
Florida Probate Code Manual : Ave Maria School of Law
Chapter 18 - Probate Forms : List of forms for both single and multiple petitioners for intestate Summary Administration.
Manual for Florida Legal Secretaries : Ave Maria School of Law
§ 5A - Probate : Overview of Probate Section; includes links to required forms.
Appendix A : Forms used in Florida Probate; includes forms for both single and multiple petitioners for intestate Summary Administration.
Nichols Cyclopedia of Legal Forms : KF 170.N53
This resource is available at the Ave Maria School of Law Library.
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