Dying without a Last Will & Testament will result in your estate passing via intestacy, which simply means that your assets will be allocated to surviving relatives according to the guidelines laid out in Florida intestacy statutes. Every state passes an intestate statute which serves as a default distribution scheme to certain relatives based on how the legislature believes the majority of people would like their assets to pass. For example, most people would want their current spouse and any biological or adopted children to receive a portion of their estate, so those parties almost always have priority under intestate statutes.
What Assets Will Be Included in the Estate?
Any assets that are titled in the sole name of the person that passes away, also referred to as the decedent, will fall into their estate and will be subject to the intestate distribution. This would not include property that is held jointly with other parties such as your spouse, nor does it include assets which have a designated beneficiary, such as many brokerage accounts or IRAs. There are many assets that are typically not included in a decedent’s probate estate, such as the following:
- Property titled in the name of a revocable trust
- Life insurance proceeds
- Funds in a IRA, 401(k), or other retirement account
- Securities held in transfer-on-death account
- Payable-on-death bank accounts
- Property you own with someone else in joint tenancy or tenancy by entirety
At death, these above mentioned assets will pass to any co-owners or to the designated beneficiaries named on the account, and as such are not included as part of the decedent’s estate. Joint ownership and designated beneficiaries have priority above any provisions within estate planning documents, such as a Will or Trust because such documents only control assets that fall into the estate.
Who Gets What?
Intestate succession will depend on which family members are alive at the time of your death. Below is a quick overview of how your assets may pass:
- If you have children, but no spouse, your children inherit everything
- If you have a spouse, but no children, your spouse inherits everything
- If you have a spouse and children from you and that spouse, and no children from outside the marriage, your spouse inherits everything
- If you have a spouse and children from you and that spouse, but you also have children from another relationship, your spouse will inherit half of your intestate property and all of your children will equally share the remaining half. Your spouse’s children will not inherit.
- If you have parents but no spouse or children, your parents inherit everything
- If you have siblings but no spouse, children, or parents, your siblings will inherit everything
Do Adopted Children or Step-Children Inherit via Intestacy?
In order for your children to inherit your assets through intestate succession, Florida must legally recognize them as your children. In regard to the FL intestate statute, adopted children are treated exactly the same as biological children. Children who have been legally adopted will always be entitled to receive an intestate share from the estate of the person who adopted them. One important distinction for estate planning purposes is that if you have step-children, which have not been legally adopted by you, they will not automatically inherit under intestate succession laws. If you desire to have your step children inherit from your estate, it is important that you execute a Last Will & Testament which names them as beneficiaries.
Sometimes determining who is qualified to inherit as a child of a decedent can be complicated. For example, if you have a posthumous child, a child conceived by you but born after your death, that child will typically have standing to inherit. Another common scenario includes non-marital children, in which the decedent was not married to the mother of the child at the time of their birth. The Florida Probate Code requires that one of the three following elements be met in order to substantiate that a certain child should have standing to inherit via intestacy from the father’s estate, which include:
1. The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.
2. The paternity of the father is established by an adjudication before or after the death of the father.
3. The paternity of the father is acknowledged in writing by the father.
Will One Child Receive More Than the Other?
Florida follows a method of distributing a decedent’s estate known as “per stirpes.” The basic concept is that each descendant on the same generational level will inherit an equal share of the decedent’s estate, and any descendants on a younger generational level that have predeceased parents, will inherit their parent’s intended share. For example, assume that the decedent had no spouse, but had two children, a son, Alex, and a daughter, Betty. Alex had one child, Chuck, and Betty had two children, Damien and Ellie. Upon the decedent’s death:
- Alex and Betty are both alive. Therefore, they split the estate equally and both receive 50%.
o Alex-50%; Betty-50%
- If Betty dies before the decedent, then her children will receive her portion of the estate. Alex will still receive 50%, while Betty’s children will each receive 25%.
o Alex-50%; Damien-25%; Ellie-25%
- If both Alex and Betty died before the decedent, then Chuck would get Alex’s’ 50% share and Betty’s children would get her 50% share.
o Chuck-50%; Damien 25%; Ellie 25%
If you have questions regarding the intestacy laws pertaining to a loved one’s estate, it is important to seek the advice of an experienced probate attorney. The highly skilled Florida probate attorneys at Walser Law Firm can assist you with all your probate needs. Call our Florida office at (561) 750-1040 to schedule a consultation today, or fill out our contact form.