Spouses Win, Children Lose Under New Florida Intestate Law

Recent changes to Florida’s intestate succession laws make drastic changes to the amounts that spouses and children receive from individuals who die without a will in Florida.

Brief Overview of Intestacy

A Florida Last Will and Testament is essentially a set of instructions about how a person’s assets should be distributed.

Some people die without Wills. Others die with Wills that they thought were valid, but are defective in some way and cannot be probated. In either case, the deceased person is said to have died “intestate.”

Without a Will, the court has no way of knowing how the deceased person wanted his or her assets to be distributed. In that case, the court will rely on a default system of rules known as intestacy laws.

Each state has its own set of intestacy laws. These laws represent the state legislature’s best guess about how most people would want their assets distributed if they die without a Will.  (This best guess is wrong in many cases, which is why everyone should have at least a simple Last Will and Testament.)

Intestacy laws typically distribute the estate to the spouse and/or children of the deceased person.  The key question is usually how much of a deceased person’s estate his or her spouse is entitled to take. In October 2011, the answer to that question changed for individuals with assets in Florida.

Changes to the Florida Intestacy Laws

Before October 2011, the law provided that if the decedent died intestate and no surviving descendants, the surviving spouse receives the entire estate. This much has not changed.

But a significant change was made to the treatment of a spouse if the decedent had descendents that are also descendants of the surviving spouse.

Under prior law, if all of the decedent’s lineal descendants (children, grandchildren, etc.) are also descendants of the surviving spouse, then the spouse would inherit the first $60,000.00 and one-half of the balance of the estate.  The descendants share the balance, per stirpes.

The new law changed this.  Instead of giving the surviving spouse half of the estate and $60,000.00, the new law gives the spouse the entire estate.  The new law will apply in situations where:

  • The decedent died intestate;
  • The decedent is survived by a spouse and descendants;
  • All of the decedent’s descendents are also children of the surviving spouse; and
  • The surviving spouse has no descendants who are not descendants of the decedent.

In other words, if a couple had children only with each other, then the entire estate is awarded to the surviving spouse.

If either the decedent or the surviving spouse has children from another relationship, then the spouse would take half of the estate, and the other half would go to the children shared by the decedent and the surviving spouse.

If your relative died intestate and you’d like to discuss the distribution of the estate with a Florida probate attorney, contact our firm for a free phone consultation.