What Are Florida’s Laws on “Descent and Distribution”?
By: Barry E. Haimo, Esq.
February 4, 2021
It’s never easy dealing with the loss of a loved one. However, there will come a point when decisions need to be made about the possessions they’ve left behind. This includes real property as well as other monetary assets.
If there was no will, Florida’s laws on descent and distribution often play an integral part in determining how the property will be split among the remaining family members.
What Is Descent and Distribution?
The terms “descent” and “distribution” are quite simple. Descent refers to the determination of rightful heirs. Distribution refers to how a decedent’s assets are shared by their heirs.
The laws in Florida regarding property ownership are quite protective. If your deceased relative did not leave a will, the laws of descent and distribution will determine who the rightful heirs are and how the property should be distributed.
Who can receive a decedent’s property when there’s no will? Generally, eligible individuals include spouses, children, siblings, and other family members. Spouses and children often get special consideration.
How Will Property Be Distributed under Florida Law?
Property distribution can be simple, but often it gets quite complicated.
The first thing that must be done is determine what property is eligible for distribution. This will be handled by the courts.
Homestead property tends to be distributed to the widow/widower and minor children. Adult children are usually next in line. In some cases, it may not be as clear-cut as this, but this is the general order that you should expect.
Other property and assets that were owned by the deceased are usually distributed after payments such as debts and taxes have been completed. There are many factors that will affect this distribution, starting with whether or not there is a validly executed last will and testament.
Barring any challenges, if there is a validly executed last will and testament, the property will be devised pursuant to that document. If a validly executed last will and testament cannot be found — or does not exist — the property will be devised and distributed pursuant to the laws of intestate succession.
What are the Florida’s Laws of Intestate Succession?
When it comes to a decedent’s assets in Florida, everything starts with the surviving spouse. The law on this is covered under Florida Statute 732.102, Surviving Spouse’s Intestate Share. (Note that this does not address elective share rights.)
- Typically, the surviving spouse will inherit the entire estate if the deceased has no descendants or they are also descendants of the surviving spouse.
- If there are descendants of the deceased that are not descendants of the surviving spouse, the spouse will share the estate equally with such descendants.
- If all descendants of the deceased are also descendants of the surviving spouse and the surviving spouse has other descendants who are not descendants of the deceased, the surviving spouse will inherit one-half of the estate.
- The surviving spouse’s rights to inherit may be limited — and even eliminated — by a prenuptial or post-nuptial agreement.
Anything not passing to the surviving spouse will pass according to Florida’s laws of intestate succession (Florida Statute 732.103).
The estate passes to people in the following order:
- Half to paternal grandparents, half to maternal grandparents
- There are more levels of finding family, but eventually assets will go to the state (called “escheat”) if no one can be located
Assets Unaffected By Descent and Distribution Laws
There are some assets that are not able to go through a will. Because of this, are not be affected by descent and distribution laws. These assets are automatically passed on to the beneficiaries — with or without a will.
Some of these include:
- Proceeds from life insurance
- Bank accounts that are payable on death
- Property that is owned in joint tenancy
If you are in a predicament where you have a loved one that died without a will and you need an attorney, reach out to us at Haimo Law.
Originally published 7/27/2017. Updated 2/4/2021.
Barry E. Haimo, Esq.
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