Under Florida intestate succession, a surviving spouse inherits everything only if there are no descendants, or if every child is also the spouse’s child and the spouse has no other children. Otherwise the spouse takes half and the decedent’s descendants share the rest. With no spouse, property passes to children, then parents, then siblings.
This article is general information about Florida law. It is not legal advice, and reading it does not create an attorney-client relationship. Every family is different, so talk with a Florida probate attorney about your situation before you act.
What is the order of intestate succession in Florida?
“Intestate” means someone died without a valid will. When that happens, Fla. Stat. 732.101 sends any property the will didn’t cover to the decedent’s heirs, in an order set by statute.
The first question is always whether there’s a surviving spouse. Under Fla. Stat. 732.102, the spouse’s share is:
- Everything, if the decedent left no descendants.
- Everything, if all of the decedent’s descendants are also the spouse’s descendants and the spouse has no other descendants.
- One-half, if the decedent has a descendant who is not the spouse’s descendant.
- One-half, if all the descendants are shared but the spouse has a descendant from another relationship.
Whatever doesn’t go to the spouse, or everything if there’s no spouse, passes under Fla. Stat. 732.103 in this order, stopping at the first group with a living member:
- The decedent’s descendants (children, then grandchildren in place of a child who died).
- Parents, equally, or the survivor of them.
- Brothers and sisters, and the descendants of any who died.
- Half to the father’s side and half to the mother’s side: grandparents first, then aunts, uncles, and their descendants.
- The family of the decedent’s last deceased spouse.
- The State of Florida, under Fla. Stat. 732.107.
We’ve also answered the shorter version of this question in our post on Florida next of kin law.
Does a spouse get everything in Florida if there’s no will?
Sometimes. It depends on whose children are whose, which is why the statute trips up so many blended families. Here’s how the rule plays out for common family shapes.
| Family at death | Spouse receives | Everyone else |
|---|---|---|
| Married, no children | Everything | Nothing |
| Married, all children shared, spouse has no other children | Everything | Children receive nothing directly |
| Married, decedent has a child from an earlier relationship | One-half | Decedent’s descendants share one-half |
| Married, all children shared, but spouse has a child from an earlier relationship | One-half | Decedent’s descendants share one-half |
| Unmarried partner, no children | Nothing | Parents, then siblings |
Take an illustrative example. Mark dies without a will. He’s survived by his wife, Dana, their two children, and a son from his first marriage. Because Mark has a descendant who isn’t Dana’s, Dana takes one-half. The other half is divided among all three of Mark’s children, including the two he shared with Dana.
Now flip it. Mark has no children from before, but Dana has a daughter from her first marriage. Dana still takes only one-half, and Mark’s two children share the other half. Most people expect the opposite. For the related question of what a spouse receives when there is a will, read does a spouse automatically inherit everything in Florida.
If you’re sorting out a family like either of these, schedule a consultation before anyone divides property.
What happens to the house when someone dies without a will?
The family home usually doesn’t follow the half-and-half split. Under Fla. Stat. 732.401, when the decedent leaves both a spouse and descendants, the spouse takes a life estate in the homestead (the right to use it for life), and the descendants own the remainder.
The spouse can instead elect to take an undivided one-half interest as a tenant in common, with the other half going to the descendants. That election has to be made within 6 months after the death, and once made, it can’t be undone. In a blended family, that choice matters because the “descendants” can include stepchildren the spouse barely knows. More on that in our post on whether homestead property is a probate asset.
Who inherits in the less common situations?
These are the questions families ask us once the basic order is clear.
- Unmarried partners don’t inherit under intestacy, no matter how long the relationship lasted. Florida voided common-law marriages entered after January 1, 1968 (Fla. Stat. 741.211). We explain the details in does Florida allow common law marriages.
- Stepchildren aren’t descendants, so they don’t inherit from a stepparent directly. One rare exception: with no relatives on either side, the estate passes to the family of the last deceased spouse, which can include that spouse’s children.
- Adopted children inherit exactly like biological children from the adopting parent (Fla. Stat. 732.108).
- Children born outside marriage inherit from their mother, and from their father if the parents went through a marriage ceremony, paternity was established by a court, or the father acknowledged paternity in writing.
- Half-siblings take half as much as full siblings when both inherit (Fla. Stat. 732.105).
- A child conceived before death but born after inherits as if born during the decedent’s life (Fla. Stat. 732.106).
Which property actually passes by intestate succession?
Only property that goes through probate. Plenty of assets pass outside it, so the intestate rules never touch them:
- Accounts and real estate owned jointly with survivorship rights.
- Life insurance, retirement accounts, and payable-on-death or transfer-on-death accounts with a living, named beneficiary.
- Assets held in a funded revocable trust.
So the first step is listing what the person owned and how each asset was titled. Our guide to the Florida probate process in the first 30 days walks families through that list.
Who handles the estate when there’s no will?
Someone still has to be appointed by the court as personal representative. For intestate estates, Fla. Stat. 733.301 gives preference first to the surviving spouse, then to the person selected by a majority in interest of the heirs, then to the heir nearest in degree. Close relatives who live outside Florida can usually still serve (Fla. Stat. 733.304).
Once appointed, the personal representative receives letters of administration, and with more than one heir involved, Florida Probate Rule 5.030(a) generally requires that person to be represented by a Florida attorney.
Blake Moore and Allison Carter handle probate administration for families in all 67 Florida counties, including heirs who live out of state.
Frequently Asked Questions
Who inherits in Florida if there is no will?
A surviving spouse comes first. The spouse takes everything if there are no descendants, or if all descendants are shared and the spouse has no others. Otherwise the spouse takes half and the decedent’s descendants take half. With no spouse, the estate goes to descendants, then parents, then siblings, then more distant relatives.
Does Florida have intestate succession per stirpes?
Yes. Under Fla. Stat. 732.104, descent in Florida is per stirpes. If a child of the decedent died first, that child’s share passes down to his or her own descendants instead of being split among the surviving children.
Who becomes executor if there is no will in Florida?
Florida calls the role personal representative. In an intestate estate, the court gives preference to the surviving spouse, then to the person chosen by a majority in interest of the heirs, then to the heir nearest in degree, under Fla. Stat. 733.301.
Do I need a probate lawyer if there is no will in Florida?
Usually. Florida Probate Rule 5.030(a) requires a personal representative to be represented by a Florida attorney unless the personal representative remains the sole interested person or is a Florida attorney. When several heirs share the estate, that exception doesn’t apply.
Does the State of Florida ever take the property?
Only when no one entitled to inherit survives the decedent. In that case the property escheats to the state under Fla. Stat. 732.107, and a person claiming entitlement has 10 years after payment to the state to reopen the administration.
Talk with a Florida probate attorney
If someone in your family died without a will, the statute already decides who inherits. What’s left is figuring out which rule applies to your family, what the house looks like under homestead law, and who should serve. We can help you work through all three.
Probate consultations are 30 minutes, by phone or in person, and you talk with an attorney. Call (352) 554-5576, schedule a consultation, or contact PTM.
If this article made you realize your own family would land in the wrong row of that table, the fix is a plan. Start with our Florida estate planning checklist.
Tempted to use an AI tool instead? Read why an online will vs. a lawyer matters in Florida first.