Florida Intestate Succession: Who Inherits When There's No Will

When someone dies without a will in Florida, the state writes one for them — and it may not match what the family expects. Florida's intestate succession laws, governed by Florida Statute Chapter 732, apply a fixed distribution formula based entirely on legal relationships. Unmarried partners receive nothing. Stepchildren who were never legally adopted receive nothing. And in blended families, the outcome can be deeply counterintuitive.

Understanding these rules matters even if you think a will exists. The intestacy laws also apply partially when a will only covers some assets, and they set the baseline every estate attorney works from when advising grieving families.

How Florida Intestate Succession Works

Florida's intestate succession rules are found in Chapter 732 of the Florida Statutes, which forms part of the Florida Probate Code (Chapters 731 through 735). The rules create a waterfall: if the first eligible class of heirs exists, they inherit everything; if not, the estate passes to the next class.

The most important variable is whether a surviving spouse exists, and if so, whether the deceased had children from a different relationship.

If the decedent is survived by a spouse and all of their children are also the spouse's children, the surviving spouse inherits 100% of the probate estate. This is the straightforward scenario — one marriage, one family.

The rules change immediately if the picture is more complicated. If the decedent had any children from a prior relationship, or any children who are not also the surviving spouse's children, the estate splits: the surviving spouse receives 50%, and the remaining 50% is divided equally among all of the decedent's children, including those who are also the spouse's children.

This outcome surprises many Florida families. A spouse of 30 years may find herself owning only half the house — the other half belonging to her adult stepchildren from her husband's first marriage.

What the Surviving Spouse Gets

The 50/50 rule for blended families is one of the most misunderstood aspects of Florida law. Many spouses assume they inherit everything automatically. Without a will or proper estate planning, that assumption can be costly.

Florida does provide another protection for spouses: the elective share under Florida Statute 732.201. But the elective share only applies when there is a will that cuts the spouse out or leaves them less than 30% of the augmented elective estate. It is not relevant to intestacy — when there is no will, the intestacy rules govern, not the elective share.

The elective share allows a surviving spouse to claim 30% of the augmented elective estate regardless of what a will says. This claim must be filed within six months of receiving formal notice of administration. If the family is dealing with intestacy, the intestacy percentages already apply — but for families where a will does exist and the spouse feels shortchanged, the elective share is the relevant remedy.

If There Is No Surviving Spouse

When the decedent leaves no surviving spouse, the estate passes to children in equal shares. All biological and legally adopted children share equally, regardless of age or whether they were living at home.

If a child predeceased the decedent but had their own children (the decedent's grandchildren), those grandchildren collectively step into their parent's share through per stirpes distribution. Each branch of the family receives what the deceased child would have received, divided among that branch's living descendants.

If the decedent left no children and no surviving descendants, the estate passes to the decedent's parents equally, or to the surviving parent if only one is alive. If both parents have died, the estate goes to siblings and half-siblings. Florida statutes trace the line through increasingly distant relatives before the estate would ever pass to the state.

Unmarried partners — including long-term companions and fiancees — receive nothing under Florida intestate succession. The only way to provide for an unmarried partner is through a will, a beneficiary designation, or joint ownership with right of survivorship.

Florida Homestead and Intestacy

Florida's homestead protection adds a critical layer of complexity to intestate succession. The Florida Constitution protects homestead property from most unsecured creditors, which is a significant benefit. But it also restricts how homestead property can pass.

If a decedent is survived by a spouse or minor child, the homestead cannot pass freely under the intestacy rules — constitutional restrictions apply. When both a spouse and adult children survive, the spouse typically receives a life estate in the homestead, with the remainder going to the descendants. This is different from the 50/50 split that applies to other probate assets.

Before a title company will insure a sale of inherited Florida homestead property, they will require an Order Determining Homestead Status from the probate court. This requires filing a Petition to Determine Homestead Status, which separates the homestead from the general probate estate and formally establishes the constitutional protections. This step cannot be skipped if the heirs want to sell.

The homestead's Save Our Homes portability benefit — which caps assessed value increases — has its own deadline. A surviving spouse or heir claiming portability must file Form DR-501T by March 1 of the following year, or the property is reassessed to full current market value. Missing this deadline is permanent; the cap cannot be retroactively restored.

If your family is navigating the estate settlement process after a Florida death, our guide walks through every step from death certificate to final distribution.

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The 10-Day Will Deposit Rule

Florida law contains an often-overlooked requirement: anyone who has custody of a decedent's will must deposit it with the clerk of the Circuit Court within ten days of learning of the death. This requirement applies even if no probate proceeding is immediately planned and even if the will is not going to be admitted to probate.

This rule creates practical urgency. If a family member finds a will in a filing cabinet, they cannot simply hold onto it while they figure out what to do. The legal obligation begins immediately. Depositing the will does not start probate — it simply puts the document into safekeeping where interested parties can access it. Failure to deposit can expose the custodian to liability.

The corollary: just because a person died without initiating probate does not mean no will exists. Before concluding that intestacy applies, families should check with the Circuit Court clerk to see whether a will has been deposited.

Why Dying Without a Will in Florida Gets Complicated

The intestacy rules work cleanly in simple family structures, but Florida families are rarely simple. Several common situations create real problems:

Blended families, as discussed above, trigger the 50/50 split that can leave a surviving spouse co-owning the home with stepchildren.

Unmarried partners have no legal inheritance rights under Florida intestate succession, no matter how long the relationship lasted. Without a will, a domestic partner of 20 years walks away with nothing from the probate estate.

Minor children create a different problem. Florida law allows a natural guardian to manage up to $15,000 in inherited assets for a minor child without court oversight. If a minor inherits more than $15,000 — which is likely if they inherit a share of real estate or a significant bank account — the court must appoint a Guardian of Property. That guardian must post an annual bond, file an annual accounting with the court, and seek court approval for significant transactions. This process is expensive and administratively burdensome, and it continues until the child turns 18.

For families dealing with these complexities after a Florida death, the right starting point is understanding the full picture of what assets exist, which are subject to probate, and which pass outside the estate entirely through beneficiary designations or joint ownership. The intestacy rules only govern the probate estate — assets like life insurance, retirement accounts, and jointly held property pass by their own mechanisms regardless of what the intestacy statutes say.

Navigating this process requires coordinating multiple legal requirements on a compressed timeline. Our Florida Estate Settlement Guide covers every step — from filing requirements to the creditor window to final distribution.

Get the Florida Estate Settlement Guide

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