Florida intestate succession explained
When there's no will, Florida statute decides who inherits — and the answers surprise people. Spouses, children, and the rules that override what most people assume.
'Intestate' just means without a will. When someone dies without a valid will in Florida, the state's intestacy statute (Florida Statutes Chapter 732) decides who inherits. It's not random — but it isn't what most families assume, either.
The most common surprise: the surviving spouse doesn't always get everything. Whether they do depends on whether the decedent had children, and whether those children are also the surviving spouse's children. Below: the actual rules, plain English.
The basic order of inheritance
When there's no will, Florida intestacy looks for heirs in this order. The first category that has a living member takes the entire estate (except for what the surviving spouse claims, if any).
- Surviving spouse and lineal descendants (children, grandchildren) — most common scenario; rules below.
- Lineal descendants only (no spouse) — children share equally; if a child predeceased, that child's children take their share.
- Parents — if no spouse and no descendants, parents inherit equally.
- Siblings and their descendants — if no spouse, no descendants, no parents.
- Grandparents and their descendants (uncles, aunts, cousins) — increasingly distant.
- More distant relatives — kindred of the last deceased spouse, then the state of Florida (escheat) if truly no relatives exist.
The spousal share — when it changes
This is where intestate succession gets interesting (and where most family conflict starts). Florida law treats the surviving spouse very differently depending on the family configuration.
- Spouse, no descendants of the decedent: spouse gets the entire intestate estate.
- Spouse, and all descendants are also descendants of the surviving spouse (i.e., classic 'married once, all kids together'): spouse gets the entire intestate estate.
- Spouse, and decedent has descendants from a prior relationship (or surviving spouse has descendants from elsewhere): spouse gets half, the descendants of the decedent share the other half.
- Spouse, and surviving spouse has descendants who are NOT descendants of the decedent: spouse gets half, decedent's descendants get the other half.
How children share — and what about stepchildren
Children of the decedent share the descendants' portion equally. If a child died before the decedent, that child's own children take the deceased child's share per stirpes (literally 'by the roots' — they split what their parent would have gotten).
- Biological children: inherit, regardless of marital status of the parents.
- Legally adopted children: inherit exactly as biological children. Florida law makes no distinction.
- Stepchildren who were never legally adopted: do NOT inherit through intestacy. This is one of the bigger surprises for blended families.
- Children born outside marriage: inherit if paternity is established (through marriage, court order, or other statutory means).
- Foster children: do not inherit unless legally adopted.
If you're treating a stepchild as one of your own and want them to inherit, a will is the only reliable way. Intestacy will cut them out.
Pretermitted child — born after the will was signed
Florida has a related rule for children born or adopted after a will is signed but not provided for in the will (Florida Statute 732.302). If you signed your will at 35 and had a child at 40 and never updated the will, the child still gets a share — calculated as if you'd died intestate as to that child's portion.
This is one of the biggest reasons we recommend updating your will after every birth or adoption — the pretermitted-child rule can produce surprising distributions you didn't actually intend.
Homestead descent — overrides intestacy
Florida's homestead has its own descent rules that override the intestacy rules for the homestead property itself. If the decedent has a surviving spouse and a minor child:
- Spouse takes a life estate in the homestead (or, on election, a 50% tenant-in-common share).
- Minor children take the remainder (or 50% tenant-in-common share).
- This is true even if the rest of the estate would otherwise pass to the spouse outright.
See our guide on What a homestead really protects for the full mechanics.
The practical implications
If you're an heir trying to figure out what you inherit when there's no will, here's what to do:
- Map the family tree — who is alive, who has died, who had children. Florida's per-stirpes rule means deceased relatives' children matter.
- Identify any prior marriages — kids from prior marriages change the math significantly.
- Check homestead status — if the home was the decedent's primary residence, homestead descent rules may take priority.
- Don't rely on assumptions — what you'd assume based on family closeness or expressed wishes is irrelevant. Statute is statute.
- Get an attorney involved early — intestate cases have higher rates of family conflict because the rules surprise people. We help families understand the math before tempers flare.
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