What Happens If You Die Without a Will in Florida?
“I don’t need a will—everything will just go to my spouse and kids, right?”
We hear this all the time. And while it’s true that your family will likely inherit something, the details of who gets what might not match your expectations.
When you die without a will in Florida, you’re considered to have died “intestate.” That means the state has a default plan for distributing your assets, and that plan may not align with your wishes at all.
What Is Intestate Succession?
Intestate succession is Florida’s legal default for what happens to your assets when you die without a valid will. The state has created a hierarchy of who inherits, and it applies whether you would have wanted it that way or not.
The rules are based entirely on your legal relationships at the time of death. Florida doesn’t consider:
• Who was closest to you emotionally
• Who helped care for you
• What you told people you wanted
• Whether you were estranged from certain family members
• What seems “fair” in your particular situation
The rules are rigid, mechanical, and often produce results that surprise (or upset) families.
Who Inherits Under Florida Law?
Here’s how Florida’s intestate succession rules work:
If You’re Married with No Children (or All Children Are Shared)
Your surviving spouse inherits everything.
If You’re Married with Children from a Prior Relationship
This is where it gets complicated, and often contentious.
Your surviving spouse receives half of your estate. Your children from the prior relationship receive the other half.
This means your spouse might have to share the family home with your adult children from a previous marriage. It can force the sale of assets, create co-ownership nightmares, and breed resentment on all sides.
If You’re Single with Children
Your children inherit everything, divided equally among them.
If any child has passed away before you but left children of their own (your grandchildren), those grandchildren inherit their parent’s share.
If You’re Single with No Children
Your assets go to your parents. If your parents have passed away, your siblings inherit. If you have no siblings, the law keeps going up and out through your family tree: aunts, uncles, cousins.
If no relatives can be found, your assets ultimately go to the State of Florida (called “escheat“).
What Intestate Succession Doesn’t Consider
Florida’s default rules don’t care about:
Your unmarried partner. If you’re not legally married, your partner inherits nothing under intestate succession. No matter how long you’ve been together, no matter how intertwined your lives are.
Stepchildren. Unless you legally adopted them, stepchildren have no inheritance rights under Florida law.
Friends and chosen family. No matter how close you were, friends have no place in the intestate succession hierarchy.
Charities. If you wanted to leave something to a cause you cared about, that won’t happen without a will.
Estranged relatives. That sibling you haven’t spoken to in 20 years? They might inherit equally with the sibling who was by your side every day.
Other Complications of Dying Without a Will
Someone Else Chooses Your Personal Representative
Without a will naming a personal representative, the court decides who manages your estate. Florida law provides a priority list, but it may not be who you would have chosen.
Someone Else Chooses Your Children’s Guardian
If you have minor children and both parents die without a will naming a guardian, the court will decide who raises your children. The judge will try to choose what’s in the child’s “best interest”, but that might not align with what you would have wanted. Family members may fight over custody, and strangers (the judge and court-appointed professionals) will make the ultimate decision.
Your Estate Still Goes Through Probate
Dying without a will makes probate more complicated and expensive. The court has to determine who your heirs are, which can require extensive investigation and legal proceedings if family relationships are unclear.
No Control Over How Heirs Receive Assets
With a will or trust, you can control how and when your beneficiaries receive their inheritance. You can create trusts for minor children, set conditions, or spread distributions over time.
Without a will, your 18-year-old receives their inheritance outright. Your child with special needs receives an inheritance that might disqualify them from government benefits. Your child going through a divorce receives assets that become part of the marital estate.
What About Your Home?
Florida has unique rules about homestead property that can create additional complications when someone dies without a will.
Generally, if you die with a surviving spouse, they have the right to remain in the home for their lifetime, but ownership may be shared with your children. This can create awkward situations where a surviving spouse lives in a home partially owned by stepchildren who may want to sell.
A properly drafted estate plan can navigate these homestead rules to achieve the result you actually want.
What Doesn’t Pass Through Intestate Succession?
Not all of your assets are controlled by intestate succession. These pass according to their own rules:
• Retirement accounts with named beneficiaries (401k, IRA)
• Life insurance policies with named beneficiaries
• Bank accounts with payable-on-death (POD) designations
• Investment accounts with transfer-on-death (TOD) designations
• Property held in joint tenancy with right of survivorship
• Assets held in a trust
This is why beneficiary designations are so important—and why they need to be coordinated with your overall estate plan.
The Solution: Create a Plan
The only way to ensure your assets go where you want them is to create an estate plan. At minimum, you need:
• A Last Will and Testament naming who inherits your assets and who serves as personal representative
• A Durable Power of Attorney for financial decisions if you become incapacitated
• A Health Care Surrogate Designation for medical decisions
• A Living Will expressing your end-of-life wishes
Depending on your situation, you may also benefit from a revocable living trust which can give you more control over how and when beneficiaries receive their inheritance.
Don’t Leave It to the State
October is National Estate Planning Awareness Week, a perfect reminder that having a plan matters.
At The Law Offices of Mark F. Moss, we help Florida families take control of their futures with comprehensive life plans tailored to their unique situations. Don’t leave your family’s future to Florida’s default rules.
Contact us at 904-329-7242 or visit markmosslaw.com to schedule a consultation.
Disclaimer: Reading this blog post does not create an attorney-client relationship and is not legal or tax advice. This is for informational purposes only. It is best to speak with an attorney or tax professional about your specific situation, questions, assets, concerns, and needs.