If you die without a will in Florida, state law decides who inherits your property through a set of intestacy statutes that start with your surviving spouse and children and then move outward to parents, siblings, and more distant relatives. The order is fixed, the court follows it, and no one gets to override it based on what the family believes you would have wanted. The results surprise people most often in blended families, where a spouse’s children from another relationship or the deceased’s children from a prior marriage change the math in ways few couples anticipate.
Who Inherits When There Is a Surviving Spouse
Florida treats the spouse’s share differently depending on whose children are in the picture. There are four scenarios.
- Spouse and no descendants: the spouse inherits everything.
- Spouse and descendants, where all of the descendants are also the spouse’s and the spouse has no other children: the spouse inherits everything.
- Spouse and at least one descendant from outside the marriage: the spouse takes half, and the descendants split the other half.
- Spouse and descendants who are all shared, but the spouse has a child from another relationship: the spouse takes half, and the deceased’s descendants take the other half.1Florida Legislature. Florida Statutes 732.102 – Spouse’s Share of Intestate Estate
That fourth scenario is the one that blindsides families. Even when every one of your children is also your spouse’s child, the spouse still receives only half if the spouse has a child from a different relationship. The statute is written to keep your estate from passing, through your spouse, to someone else’s bloodline.
Who Inherits When There Is No Surviving Spouse
With no spouse, the estate moves down a chain and stops at the first level where a living heir exists.
- Descendants first. Children take equal shares, and a deceased child’s share passes to that child’s own children (per stirpes).
- If no descendants survive, the estate goes to the deceased’s parents equally, or to whichever parent is still living.
- If no parents survive, it goes to siblings, with a deceased sibling’s share passing to that sibling’s children.
- If no siblings or their descendants survive, the estate splits in half between the paternal and maternal sides, going first to grandparents, then to aunts, uncles, and their descendants.
If no heir can be identified at any level, the property escheats to the state. It is sold and the proceeds go to Florida’s Chief Financial Officer.2Florida Legislature. Florida Statutes 732.103 – Share of Other Heirs
Who Counts as an Heir
A few rules about who qualifies don’t match everyday assumptions.
Adopted children inherit from the adoptive family exactly as biological children do, and they lose inheritance rights from the biological family once the adoption is final. Two exceptions preserve those biological ties: a stepparent adoption leaves intact the child’s inheritance rights through the other biological parent’s family, and the same preservation applies when a close relative adopts a child after both biological parents have died.3Florida Legislature. Florida Statutes 732.108 – Adopted Persons and Persons Born Out of Wedlock
Half-blood siblings inherit half as much as whole-blood siblings when both are in the same class. A whole-blood brother receives twice what a half-blood brother receives. If every sibling in the inheriting class is half-blood, they share equally.
Children born outside of marriage automatically inherit from their mother. They inherit from their father if paternity was established, either during his life or afterward, through legal proceedings or acknowledgment.
What the Spouse and Children Receive No Matter the Split
Three protections run alongside the intestacy percentages. They apply even when they would upset the pure statutory distribution, and they are shielded from most creditor claims.
The Homestead
Florida’s homestead rules are strong, and they are also where intestacy causes the most trouble. When someone dies without a will leaving both a surviving spouse and descendants, the spouse does not take the home outright. The spouse receives a life estate, with the right to live in and use the home for life, and ownership passes to the descendants on the spouse’s death. The spouse can instead elect to take an undivided one-half interest as a tenant in common with the descendants taking the other half immediately. That election must be made within six months of the death.4Justia. Florida Statutes 732.401 – Descent of Homestead
A life estate means the spouse cannot sell the home without the descendants’ agreement, and the descendants cannot force a sale while the spouse is alive. It is a forced co-ownership that regularly generates conflict. If no descendants survive, the spouse inherits the homestead outright. If no spouse survives, it passes to descendants like any other intestate property.
Exempt Property
Certain personal items are set aside for the surviving spouse, or for the descendants if there is no spouse, and are protected from creditors. The list covers household furniture, furnishings, and appliances up to a net value of $20,000, up to two motor vehicles weighing 15,000 pounds or less that were regularly used by the family, and any prepaid college tuition plans under Section 529 of the Internal Revenue Code.5Florida Legislature. Florida Statutes 732.402 – Exempt Property
Family Allowance
The surviving spouse and any dependents the deceased was supporting can receive a reasonable cash allowance from the estate during probate, capped at $18,000 total, to cover basic living expenses while the estate is being administered.6Florida Senate. Florida Statutes 732.403 – Family Allowance
What Intestacy Does Not Control
The intestacy statutes only reach “probate assets,” meaning property the deceased owned in their own name with no built-in way for it to transfer at death. A large share of many estates skips probate entirely and passes directly to a named recipient regardless of whether a will exists:
- Life insurance policies and retirement accounts such as 401(k)s and IRAs pass to the named beneficiary.
- Bank accounts and real estate held with right of survivorship, including tenancy by the entirety between spouses, pass to the surviving co-owner.
- Assets held in a trust pass under the trust’s terms.
- Payable-on-death bank accounts and transfer-on-death investment accounts pass to the named beneficiary.
If most of someone’s wealth sits in retirement accounts with beneficiaries and jointly titled real estate, intestacy may control a surprisingly small slice of the overall estate.
What Happens to Minor Children
Without a will, no one has been named as guardian for your minor children. If the other parent is alive and has parental rights, that parent takes custody. If both parents are gone or the surviving parent is unavailable, a Florida court appoints a guardian based on the best interests of the child. Family members can petition, but the choice is the judge’s. Intestacy law offers nothing on this question; a will is the only way to make your preference known.
When a minor child inherits property through intestacy, Florida typically requires the funds to be managed by a court-appointed guardian of the property or held in a restricted account until the child turns 18, which brings its own ongoing oversight and legal costs.
How the Probate Process Runs
When someone dies intestate, their probate assets go through a court-supervised process that inventories property, pays debts and taxes, and distributes what remains to the statutory heirs. An interested party files a petition with the circuit court to open the case, and the court appoints a personal representative to manage the estate.
Who the Court Appoints
With no will naming an executor, Florida sets a preference order. The surviving spouse comes first. If the spouse declines or doesn’t qualify, the person chosen by a majority of the heirs is next. If the heirs disagree, the court selects the nearest heir who applies.7Florida Legislature. Florida Statutes 733.301 – Preference in Appointment of Personal Representative
A personal representative generally must be a Florida resident, at least 18, and mentally and physically able to serve. A person convicted of a felony, or of abuse, neglect, or exploitation of an elderly or disabled person, is disqualified.8Florida Legislature. Florida Statutes 733.303 – Persons Not Qualified
The Attorney Requirement
Florida effectively requires a lawyer for probate. Under Florida Probate Rule 5.030, the personal representative must be represented by an attorney unless the personal representative is the sole interested person in the estate, meaning the only beneficiary and the only person with a financial stake. In intestacy cases with multiple heirs, that exception rarely applies, so attorney fees should be expected from the start.
Formal vs. Summary Administration
Formal administration is the standard path. It involves appointing a personal representative, publishing notice to creditors, inventorying assets, paying debts, and then distributing the remainder. Summary administration is a shorter track available when the non-exempt assets of the estate total $75,000 or less, or when the deceased has been dead for more than two years.9Florida Legislature. Florida Statutes 735.201 – Summary Administration Summary administration skips the personal representative and distributes assets more directly, but recipients can remain personally liable for the deceased’s unpaid debts for two years after the date of death.
How Long It Takes
A straightforward formal administration usually runs at least five to six months because the estate must stay open through the three-month creditor claim window. Complicated estates, including those requiring a federal estate tax return, contested claims, or an ongoing business, can stretch past twelve months. Summary administration is generally faster.
Debts and Creditor Claims
Debts are paid before heirs receive anything. After probate opens, the personal representative publishes a notice to creditors, and creditors have three months from the first publication to file claims. A creditor who gets direct notice has at least 30 days from service, even if the three-month window has closed.10Florida Legislature. Florida Statutes 733.702 – Limitations on Presentation of Claims Claims not filed by the deadline are generally barred for good.
When the estate cannot pay every claim in full, Florida statute sets a strict priority order, with administration costs and attorney fees at the top, funeral expenses capped at $6,000 next, and general unsecured debts last. Creditors within a class that runs short are paid proportionally.11Florida Legislature. Florida Statutes 733.707 – Order of Payment of Expenses and Obligations
Taxes
Dying without a will does not change the tax picture. A final federal income tax return (Form 1040) is still due for the year of death. If the estate itself earns $600 or more in gross income during administration, the personal representative files a separate Form 1041 for the estate as its own tax entity.12Internal Revenue Service. How to File a Final Tax Return for Someone Who Has Passed Away For 2026, the federal estate tax exemption is $15,000,000 per person; estates below that threshold owe no federal estate tax and generally need not file a return. Florida has no separate state estate tax or inheritance tax.13Internal Revenue Service. What’s New — Estate and Gift Tax
What Probate Costs
Attorney and personal representative compensation in Florida follow a statutory fee schedule set out in Section 733.6171 and calculated as a percentage of the estate’s compensable value, which is essentially the inventory value of probate assets plus income earned during administration. For most estates, each of those fees runs roughly 3% of the first $1 million in value, with the percentage dropping on higher-value estates. The court may approve additional fees for extraordinary services such as tax preparation, real estate sales, or litigation. Court filing fees, certified copies, and the required creditor notice publication add several hundred dollars more and are paid from the estate before anything is distributed.