Intestacy Applies Only to Probate Assets
Intestacy governs probate assets. A named beneficiary, survivorship title, funded trust, or Lady Bird deed may control an asset despite the absence of a will.
Current Surviving-Spouse Share Under Fla. Stat. 732.102
Florida’s current spouse-share rules depend on descendants of both spouses and the decedent. The table below addresses the intestate estate, not every asset owned at death.
| Family situation | Spouse share |
|---|---|
| No surviving descendants | Spouse receives entire intestate estate |
| All decedent's descendants are also descendants of surviving spouse AND spouse has no other descendants | Spouse receives entire intestate estate |
| Decedent has at least one descendant who is NOT a descendant of surviving spouse | Spouse receives one-half of intestate estate |
| All decedent's descendants are also descendants of spouse, BUT spouse has at least one other descendant who is NOT a descendant of decedent | Spouse receives one-half of intestate estate |
What Descendants Receive
Under Fla. Stat. 732.104, descendants inherit per stirpes. In plain terms, children in the same generation generally share equally; if a child has died leaving descendants, those descendants take the deceased child’s share.
What If There Is No Spouse and No Descendant?
The general order moves to parents, then siblings and descendants of deceased siblings, followed by more remote statutory heirs. Escheat to Florida is a last resort.
What About an Unmarried Partner or Stepchild?
An unmarried partner generally has no intestate share merely because of the relationship, and a stepchild is generally not treated as a descendant unless legally adopted. Beneficiary designations, deeds, contracts, and joint ownership may still transfer particular assets.
Who Handles the Estate?
The probate court appoints a personal representative using the statutory preference at a high level. The court does not simply hand the estate to the State.
Who Raises Minor Children?
A will can nominate a guardian. Without a nomination, the court decides under applicable law and the child’s best interests; it does not randomly select someone.
Florida Homestead Has Special Rules
Protected homestead descent and devise have separate constitutional and statutory rules, especially when a spouse or minor child survives. The facts and title matter.
Does Dying Without a Will Always Mean Formal Administration?
No. Summary administration under Fla. Stat. 735.201 and narrow disposition-without-administration procedures may apply. Intestate probate assets often still require a court order or administration even when formal administration is not required.
For related probate questions, see whether a will avoids probate and how probate may be avoided.
Practical Problems Intestacy Does Not Solve
Intestacy provides no personal choice of beneficiaries, guardian nomination, trust for minors, special distribution plan, charity gifts, business succession plan, or probate avoidance.
Frequently Asked Questions
Does my spouse inherit everything if I die without a will?
It depends on your family structure. Under Fla. Stat. 732.102, a surviving spouse inherits the entire intestate estate if there are no descendants, or if all of the decedent's descendants are also descendants of the surviving spouse and the surviving spouse has no other descendants. In a blended family — where either spouse has children from a prior relationship — the surviving spouse inherits only one-half of the intestate estate. The other half goes to the decedent's descendants.
What happens in a blended family?
Intestacy can produce results that neither spouse would have chosen. If the decedent has a child from a prior relationship, the surviving spouse receives only one-half of the intestate estate. The other half passes to the decedent's descendants, which may include children from a prior relationship. If the surviving spouse also has children from a prior relationship, the same one-half rule applies. A will or trust-based plan allows the couple to structure distributions intentionally.
Do children inherit equally in Florida?
Under Fla. Stat. 732.104, the intestate estate passes per stirpes to the decedent's descendants. In a simple case with multiple children and no deceased children, each child receives an equal share. If a child has predeceased the decedent but left descendants, those descendants step into the deceased child's share and divide it among themselves.
Does an unmarried partner inherit without a will?
Generally no. An unmarried partner has no intestate share under Florida law merely from the relationship. Assets that pass by beneficiary designation, joint ownership, or other nonprobate mechanisms may still reach the partner, but the intestate estate passes to statutory heirs. A will, trust, beneficiary designation, or deed is necessary to provide for an unmarried partner.
Do stepchildren inherit if they were never adopted?
Generally no. A stepchild who was never legally adopted is not treated as a descendant for intestate succession purposes. Assets can still reach a stepchild through a will, trust, beneficiary designation, or other transfer mechanism, but intestacy does not provide for unadopted stepchildren.
Who becomes personal representative?
Under Fla. Stat. 733.301, the court follows a statutory order of preference: surviving spouse first, then a person selected by a majority of the heirs, then the heir nearest in degree. The court appoints whoever qualifies under the statute — not necessarily the person the decedent would have chosen.
Who decides who raises minor children?
Without a will nominating a guardian, the court decides who will serve as guardian of a minor child based on Florida law and the child's best interests. The court considers available family members and other qualified individuals. A will nomination is an important input into that process, though the court makes the final appointment.
Can a small intestate estate use summary administration?
Summary administration under Fla. Stat. 735.201 may be available when the estate subject to administration does not exceed $75,000 after exempt property, or when the decedent has been dead more than two years. Summary administration is still a court probate procedure — it is not the same as no probate. Limited disposition without administration may be available in narrow circumstances.