When a person dies without leaving a will, their estate is known as “intestate.”
When an estate enters intestacy, there can be a lot of challenging questions about who should be entitled to what. Of course, if the sum of the estate is not greater than the debts and liabilities owed by the decedent at the time of his or her death, then intestate succession is moot as there will be no property left to inherit.
However, when the estate is larger than the amount of debts and liabilities, and no will or other estate document is left to clarify the decedent’s wishes regarding who should inherit what property, intestacy laws become vital in determining how the assets should be distributed.
Each state has its own intestacy succession laws that determine the legal heirs to an estate.
In Florida, if your spouse is still living when you die, and neither of you have any children with another person, your spouse will be entitled to inherit 100% of your estate. This is true even if you and your spouse have children together, though all claim your spouse has to your estate is removed when a divorce is finalized. If the divorce is pending or you are separated, your spouse still has a claim to inheritance.
If you have children and no spouse, then your children will receive 100% of your estate, which will be divided amongst them on a per stirpes basis. Per stirpes means your estate will be divided equally amongst qualifying descendants, and your immediate descendants’ shares will be divided equally amongst their descendants if your immediate descendant is deceased. So, if you had three kids, your spouse has passed away, and only two of your kids are living, one-third of your estate would be equally divided amongst the children of your deceased child—your grandchildren.
Things get a bit more complex when you or your spouse have children from another person. Keep in mind that Florida considers half relative to be “whole” for the purpose of intestate succession.
If you have children from another marriage, and your spouse is still alive, your estate will be split 50/50 between your spouse and your descendants (per stirpes). If your spouse is alive and has children from another marriage, and you and your spouse also have descendants together, your spouse gets 50% of your intestate property and your direct descendants get 50% of the intestate property. Stepchildren whom you never legally adopted have no claim to your intestate property.
In cases where you have no spouse or descendants, and one or more of your parents are still alive, your parents are entitled to inherit 100% of your estate. In the same scenario as above, but with your parents predeceasing you, your siblings would inherit your intestate property per stirpes.
It is important to keep in mind that, as with probate, only certain types of property qualify for intestate succession. Some assets not affected by intestate laws include life insurance, retirement fund accounts (ex: IRA or 401k), and property in a living trust. These assets will go to designated beneficiaries or surviving co-owners.
Florida also disqualifies relatives who were involved in the murder of the decedent from collecting intestate inheritance.
An intestate estate can create a great deal of strife amongst family members over who should inherit your property. While intestacy laws will govern the distribution of your assets to relatives should you die without a will, it is in your best interests and your family’s best interests to create a will and comprehensive estate plan to ensure that your estate is handled the way you want when you die. Call the Vasquez de Lara Law Group today to start planning your estate, or if a loved one has passed away and you are facing a complex intestacy case.