If you own property, have children, or care who inherits what, you need a will in Florida. Without one, a statutory formula written by the legislature decides who gets your assets, the court picks who manages your estate, and no one is formally nominated to raise your minor children. Florida also layers on homestead rules and spousal rights that make default outcomes especially unpredictable here, so planning ahead matters more than it might in other states.
That said, a will is not a cure-all. Some of Florida’s rules override what your will says, and some of your assets never pass through a will at all. Knowing where a will controls, and where it doesn’t, is the real answer to the question.
What Happens If You Die Without One
Dying without a will in Florida triggers “intestate succession.” Your estate is distributed by family relationship under a fixed formula that ignores your preferences, your relationships, and anything you promised during your lifetime. It cannot send anything to friends, charities, or an unmarried partner.
The spouse’s share is where people are most often surprised. If you have no descendants, or all your descendants are also your spouse’s and your spouse has no other children, your spouse inherits everything. But if either of you has a child from another relationship, your spouse gets half and your descendants split the other half.1Justia Law. Florida Code 732.102 – Spouse’s Share of Intestate Estate That last rule catches many people off guard: even if every one of your children is also your spouse’s child, your spouse only gets half if they have a child from a prior relationship.
If there is no surviving spouse, the estate passes in a fixed order to descendants, then parents, then siblings and their descendants, and outward from there.2FindLaw. Florida Code 732.103 – Share of Other Heirs A will lets you bypass that entire ladder.
Homestead: Where Your Will Hits a Wall
Florida’s constitution protects your primary residence from most creditors and caps property tax increases, but those protections come with a restriction most people don’t learn about until it’s too late. If you are survived by a spouse or a minor child, you generally cannot leave your homestead to anyone else.3FindLaw. Florida Constitution Article X Section 4 – Homestead Exemptions
If you have a minor child, you cannot devise the homestead at all, not even to your spouse. If you have a surviving spouse but no minor children, you can devise it only to your spouse.4FindLaw. Florida Code 732.4015 – Devise of Homestead A will that tries to leave the house to an adult child, a sibling, or a friend in those situations will fail on that point, no matter how clearly worded.
When the homestead cannot be devised, the surviving spouse typically receives a life estate (the right to live there for life) with descendants eventually inheriting it, or the spouse can elect an undivided half interest as a tenant in common. Knowing this early is the whole point of having a will drafted properly: you can plan around the restriction with a trust, life insurance, or other transfers rather than discover it in probate.
You Cannot Fully Disinherit a Spouse
Even with a will, Florida gives a surviving spouse the right to claim an “elective share” of 30 percent of the elective estate.5Online Sunshine. Florida Code 732.2065 – Amount of the Elective Share The elective estate reaches beyond probate assets to include certain trust assets, joint accounts, and other transfers. If your will leaves less than 30 percent, your spouse can claim the difference within six months of receiving the notice of administration.
This matters most in second marriages, where you may want the bulk of your estate to go to children from a prior relationship. A prenuptial or postnuptial agreement can waive the elective share, but only in writing and executed with proper formalities.
What a Will Actually Controls
A will governs your “probate estate,” which is property that doesn’t already have a built-in way to transfer at death. That typically includes real estate titled only in your name, bank accounts without a payable-on-death beneficiary, vehicles, personal belongings, and business interests. Life insurance with a named beneficiary, retirement accounts, and jointly held property with survivorship rights pass outside probate and ignore your will entirely. Reviewing your beneficiary designations is part of making a will do what you think it does.
Even for people with modest assets, a will does several jobs that have nothing to do with dividing property.
Naming the Person Who Manages Your Estate
Your will names your personal representative (called an executor elsewhere), the person who gathers assets, pays debts and taxes, and distributes what remains. Without a will, the court appoints someone under a statutory priority list.
One Florida wrinkle to check before you name anyone: a non-Florida resident can only serve if they are your spouse, sibling, parent, child, or other relative by blood or adoption, or the spouse of such a relative.6Online Sunshine. Florida Code 733.304 – Nonresidents A trusted out-of-state friend or business partner cannot qualify.
Nominating a Guardian for Your Children
If you have minor children, a will is the primary place to tell the court who should raise them. Florida allows parents to name a “preneed guardian” in a written declaration, and your will is a standard vehicle for it.7FindLaw. Florida Code 744.3046 – Preneed Guardian for Minor Without it, the court chooses, and family disputes often follow.
Setting Up a Trust at Death
A will can create a testamentary trust that comes into existence when you die. This is useful when a beneficiary shouldn’t receive a lump sum — a young child, a teenager, or someone who struggles with money. You specify when and how distributions happen and name a trustee to manage the funds.
Giving Access to Digital Accounts
Florida’s Fiduciary Access to Digital Assets Act lets your personal representative manage your digital accounts, but the content of your emails, messages, and other communications is only available if you explicitly consent in your will or trust.8Online Sunshine. Florida Code Chapter 740 – Fiduciary Access to Digital Assets Act Any directions you set through a platform’s own tool take top priority, then your legal documents, then the platform’s terms of service as a fallback. Spelling this out in your will helps your representative reach cryptocurrency, cloud storage, online banking, and social media accounts without a fight.
What Makes a Florida Will Valid
Florida enforces will formalities strictly. A document that misses any requirement is invalid, no matter how clearly it reflects your wishes.
- You must be at least 18 (or an emancipated minor) and mentally capable of understanding what you own, who your family is, and what the will does.
- The will must be a written document. Oral wills are not valid in Florida, and neither is a purely handwritten will without witnesses (a “holographic will”).
- You must sign at the end. If you physically cannot sign, someone can sign for you in your presence and at your direction, but that person cannot also serve as a witness.
- Two witnesses must watch you sign (or hear you acknowledge your signature) and then sign the will in your presence and in each other’s presence.
One trap worth flagging: Florida will accept an out-of-state will that was validly executed under the laws of the state where it was made, but it will not honor a holographic or oral will from another state.9Florida Senate. Florida Code 732.502 – Execution of Wills If you moved here with an unwitnessed handwritten will from a state that allows them, that document is not valid in Florida.
Add a self-proving affidavit while you’re at it. You and your witnesses sign a sworn statement before a notary confirming the will was properly executed, which lets the will be admitted to probate without finding and deposing the witnesses years later.10FindLaw. Florida Code 732.503 – Self-Proof of Will It can be added at signing or any time afterward, and Florida allows online notarization for it.
Life Changes That Quietly Rewrite Your Will
Marriage, divorce, and new children do not automatically revoke your will, but each one changes how it operates in ways you probably don’t want to leave to defaults.11Florida Senate. Florida Code 732.507 – Effect of Subsequent Marriage, Birth, Adoption, or Dissolution of Marriage
After a divorce, Florida automatically voids every provision in your will that benefits your former spouse, and the will is read as though your ex died at the time of the divorce. That removes them as beneficiary and as personal representative, but it does not remove your ex’s relatives, like stepchildren you named. For broader changes, you need a new will.
If you marry after signing your will and don’t update it, your new spouse qualifies as a “pretermitted spouse” and takes whatever they would have received under intestacy, as if you had no will at all.12Justia Law. Florida Code 732.301 – Pretermitted Spouse The exceptions are if the will already provides for the spouse, a prenup or postnup addresses it, or the will explicitly states an intent not to provide for the spouse. A child born or adopted after you sign your will can also claim pretermitted rights. Any of these events is a signal to update the document, not to rely on these defaults.
Does a Small Estate Still Need a Will?
If your probate estate is $75,000 or less (minus exempt property), or if you have been dead more than two years, your beneficiaries can use Florida’s “summary administration” instead of full probate.13Online Sunshine. Florida Code 735.201 – Summary Administration The process is faster and cheaper, and no personal representative is appointed. A will still helps: it identifies your beneficiaries and their shares, which the court follows in issuing its order. Without one, the intestacy formula applies even in a summary proceeding. One caveat: if your will specifically requires full formal administration, the estate cannot use the summary process.
Federal estate tax is unlikely to be your reason for a will. The 2026 federal exemption is $15,000,000 per person following the One, Big, Beautiful Bill signed on July 4, 2025, and married couples can effectively shelter up to $30,000,000 combined.14Internal Revenue Service. What’s New – Estate and Gift Tax Florida imposes no state estate or inheritance tax. The reasons to have a will in Florida are almost never about tax; they are about control, naming the right people, and working around the homestead and spousal rules.
Documents a Will Does Not Replace
A will does nothing for you while you are alive. If you want decisions handled during incapacity or a medical emergency, you need separate documents.
A revocable living trust lets you transfer assets into a trust during your lifetime and distribute them at death without probate, which is faster and more private than court administration. It is particularly useful if you own real estate in more than one state. A trust does not replace a will; you still need a “pour-over” will to catch anything you never transferred in.
A durable power of attorney authorizes someone to handle your financial affairs if you cannot. The document must include specific language indicating it survives your incapacity.15Online Sunshine. Florida Code Chapter 709 – Power of Attorney Without one, your family may have to petition for a guardianship, which is slow and expensive.
A healthcare surrogate designation names someone to make medical decisions when you cannot. It must be signed before two adult witnesses, the surrogate cannot be a witness, and at least one witness must not be your spouse or blood relative.16Justia Law. Florida Code 765.202 – Designation of a Health Care Surrogate You can specify that the surrogate’s authority begins immediately rather than waiting for a formal determination of incapacity.
A living will states your wishes about life-prolonging treatment if you develop a terminal condition, an end-stage condition, or enter a persistent vegetative state. It also requires two witnesses, with at least one who is not your spouse or blood relative.17Justia Law. Florida Code 765.302 – Procedure for Making a Living Will It takes the guessing out of a moment when your family would otherwise be left to decide blind.