When someone dies in Florida without a valid will, the estate passes by intestate succession—a fixed statutory formula in Chapter 732 of the Florida Statutes that decides who inherits and in what proportion. The law, not the deceased and not the family, names the heirs: typically the surviving spouse and descendants first, then parents, then siblings, and outward through the bloodline. Dying this way is called dying “intestate,” and it means the probate court distributes assets strictly by statute rather than by personal wishes.
That sentence sounds tidy. In practice, intestate estates are where some of the most painful probate fights begin—blended families, a second spouse and children from a first marriage, a homestead nobody can agree on. We see these cases often, and many of them trace back to one avoidable fact: there was no will, so the State of Florida wrote one by default.
What “Intestate” Means in Florida Probate
An estate is intestate when there is no will at all, when a will is found invalid, or when a will fails to dispose of some property (partial intestacy). Florida’s intestate scheme governs only probate assets—property titled in the decedent’s sole name with no beneficiary designation and no survivorship feature.
A lot of wealth never touches intestate succession because it passes outside probate entirely. Common examples:
- Life insurance and retirement accounts (IRA, 401(k)) with a named, living beneficiary
- “Payable on death” (POD) bank accounts and “transfer on death” (TOD) brokerage accounts
- Real estate or accounts held as joint tenants with right of survivorship or as tenancy by the entireties between spouses
- Assets already titled in a living trust
Everything else—the solely owned house, the single-name checking account, the car, the personal effects—is what the intestacy statutes actually divide.
Who Inherits Under Florida Intestate Succession
Florida sets a clear order of priority. The two central statutes are Fla. Stat. § 732.102 (the surviving spouse’s share) and § 732.103 (the share of everyone else).
The Surviving Spouse’s Share (§ 732.102)
The spouse’s portion depends entirely on whether the decedent left descendants, and whether those descendants are also the spouse’s:
- No surviving descendants: the spouse inherits the entire intestate estate.
- Descendants, all of whom are also the surviving spouse’s descendants, and the spouse has no other descendants: the spouse inherits the entire intestate estate.
- Descendants who are not all the spouse’s (the classic blended-family scenario), or where the spouse has other living descendants of their own: the spouse takes one-half of the intestate estate, and the decedent’s descendants share the other half.
That blended-family rule surprises people constantly. A man dies owning a Florida condo in his sole name. He has a wife of fifteen years and two adult children from a prior marriage. Without a will, the wife does not inherit the whole estate—she takes half, and the two children split the rest. Neither side usually expected that, and that gap between expectation and statute is where litigation is born.
If There Is No Surviving Spouse (§ 732.103)
When there is no spouse, or for the portion that does not pass to the spouse, the estate descends in this order:
- To the decedent’s descendants (children, then grandchildren, etc.), distributed per stirpes—by branch of the family.
- If no descendants, to the decedent’s parents equally, or to the survivor of them.
- If no parents, to the decedent’s brothers and sisters and the descendants of any deceased siblings.
- If none of the above, the estate splits between the paternal and maternal sides—grandparents, then aunts, uncles, and cousins.
- If no kindred can be found, the estate eventually escheats to the State of Florida under § 732.107—a rare but real outcome.
“Per stirpes” matters more than it sounds. If a decedent had three children and one predeceased her leaving two children of their own, the estate divides into three branches; the deceased child’s branch (the two grandchildren) splits that one-third between them.
Special Rules That Override the Simple Formula
Three Florida-specific doctrines routinely change the math, and overlooking any of them is how an intestate estate goes wrong.
Homestead Descent (§ 732.401)
Florida’s homestead protection is constitutional, and it does not follow ordinary intestate rules. If the decedent is survived by a spouse and descendants and the homestead was not validly devised, the surviving spouse receives a life estate in the home, with a vested remainder to the descendants. Since 2010, § 732.401(2) gives the spouse an alternative: within six months of death, the spouse may elect to take a one-half undivided interest as a tenant in common instead of the life estate, with the descendants taking the other half. Choosing wisely between a life estate and a half interest is a real financial decision—often one worth an attorney’s analysis before the deadline runs.
The Spousal Elective Share (§§ 732.201–732.2155)
A surviving spouse in Florida cannot be cut down below a floor. The elective share entitles the spouse to 30% of the “elective estate,” a broad pool that reaches well beyond probate assets—it can include certain trust property, jointly held accounts, and POD/TOD designations. In an intestate estate, the spouse usually compares the statutory intestate share against the elective share and takes whichever is larger. The election is time-sensitive and procedural; missing the window forfeits it.
The 120-Hour Survival Rule (§ 732.601)
To inherit, an heir generally must survive the decedent by at least 120 hours. If two people die close together—an accident, for instance—and the order or timing is unclear, each is treated as having predeceased the other for inheritance purposes. This rule quietly redirects estates more often than families realize.
Who Runs the Estate When There’s No Will?
With no will, there is no named executor. The court appoints a personal representative under the preference order in Fla. Stat. § 733.301: in an intestate estate, the surviving spouse has first priority, followed by the person selected by a majority in interest of the heirs, and then the heir nearest in degree. Where multiple heirs want the role, the judge may pick the one best qualified.
This is precisely where guardianship and probate collide. If an heir was already under a contested guardianship before death, or if an alleged incapacitated person’s estate is being administered, the question of who controls the estate can reopen old conflicts. Transitioning from a guardianship to an estate administration demands careful attention to standing, accountings, and the priority rules—an area where experienced earns its keep.
How Florida Intestacy Compares to New York
For families who own property in both Florida and New York—a Long Island home and a Florida winter residence is a familiar pairing—the differences matter. New York’s intestacy statute (EPTL 4-1.1) gives a surviving spouse the first $50,000 plus one-half of the balance when there are descendants, with the children taking the rest. Florida, by contrast, often gives the spouse the entire estate when all descendants are shared, but only one-half in a blended family. A person who dies owning real property in two states may face ancillary probate—a primary proceeding in the domicile state and a secondary one where the out-of-state real estate sits. Coordinating both is its own discipline; our team handles New York matters directly and works with Florida counsel through our Florida probate practice.
Why Intestate Estates Spark Litigation
The statute is rigid, but the facts rarely are. Disputes commonly arise over:
- Heirship. Unknown or estranged children, paternity questions, and whether a relationship qualifies as a legal marriage.
- The homestead election. A surviving spouse and stepchildren forced to co-own a house neither wants.
- Personal representative appointment. Multiple heirs of equal priority each insisting on control.
- Assets dragged back into the estate. Joint accounts or beneficiary designations challenged as the product of undue influence or a lack of capacity.
When those fights turn formal, they become full matters—heirship determinations, accounting objections, and removal proceedings. The cost in legal fees and family relationships almost always exceeds what a modest estate plan would have cost during life.
The Practical Takeaway
Intestate succession is not a catastrophe, but it is a default no one would design on purpose. It ignores your stepchildren, your caregiver, your favorite niece, and your charitable intentions. It can split a home among people who don’t get along and hand control to whoever wins a priority contest. A simple will—ideally paired with proper beneficiary designations and, where appropriate, a trust—lets you replace the State’s formula with your own. If you’d like to put a plan in place, see our overview of wills and estate planning, or learn more about the steps involved in Florida probate administration.
If a loved one has already passed without a will, do not wait. Deadlines for the elective share and the homestead election run quickly, and the personal representative appointment is often a first-come question. Contact our office to discuss your situation before those windows close.
Frequently Asked Questions
What happens to a house in Florida if someone dies without a will?
If the home is the decedent’s homestead and they leave a spouse and descendants, the surviving spouse receives a life estate with the descendants holding the remainder, unless the spouse elects within six months to take a one-half undivided interest as tenant in common under Fla. Stat. 732.401(2). Non-homestead real estate passes by the ordinary intestate order in sections 732.102 and 732.103.
How much does a surviving spouse inherit under Florida intestate law?
Under Fla. Stat. 732.102, the spouse inherits the entire intestate estate if there are no descendants, or if all descendants are shared by both spouses and the surviving spouse has no other descendants. In a blended-family situation, where some descendants are not the spouse’s, the spouse takes one-half and the decedent’s descendants share the other half. The spouse may also elect the 30% elective share if it yields more.
Who is appointed to manage an estate when there is no will?
The court appoints a personal representative under Fla. Stat. 733.301. In an intestate estate, the surviving spouse has first preference, followed by the heir chosen by a majority in interest of the heirs, then the heir nearest in degree. If competing heirs have equal priority, the judge selects the one best qualified.
Can stepchildren or unmarried partners inherit under Florida intestacy?
No. Florida intestate succession passes only to legally recognized relatives: spouses by valid marriage and blood or legally adopted descendants and kin. Stepchildren who were never legally adopted, and unmarried partners, inherit nothing under the statute. The only way to provide for them is a will, trust, or beneficiary designation made during life.
Does Florida intestate succession apply if the person owned property in another state like New York?
The primary probate occurs in the decedent’s state of domicile, but real estate located in another state typically requires a separate ancillary probate under that state’s law. A Long Island home plus a Florida residence may trigger proceedings in both jurisdictions, each applying its own intestacy rules, which is why coordinated New York and Florida counsel is valuable.
Have a question about your estate?
Talk it through with Russel Morgan — free 30-minute consult.