The Quiet Assumption That Costs Florida Families Everything
A 52-year-old father of two in Miramar, recently remarried, passes away unexpectedly. He owns a home, a small business, two vehicles, and a few hundred thousand dollars between savings and a 401(k). He always meant to “get around to” making a will. Everyone assumes his wife will inherit everything, because that’s what spouses do, right?
Wrong. Under Florida law, because he had children from his first marriage, his second wife inherits only half of his probate estate. The other half goes to his children, who are minors, which means a court-appointed guardian will manage their share until they turn 18. His business, his bank accounts, his home, all of it gets carved up by a statute he never read, and his widow ends up co-owning property with stepchildren she barely knows.
This is what happens when you die without a will in Florida. The state writes one for you. And the state’s version is almost never the one you would have chosen.
This article explains exactly what happens to your assets, your family, and your children when you pass away without a will in Florida, why the outcome is rarely what people expect, and what you can do today to make sure your wishes (and not a statute) decide your legacy.
What “Intestate” Means in Florida
When someone dies without a valid will in Florida, they are said to have died intestate. Their estate is then distributed according to Florida’s intestate succession laws, which are spelled out in Fla. Stat. § 732.
Intestate succession is essentially a default playbook the state uses when you haven’t left instructions. It’s not flexible. It doesn’t consider your relationships, your wishes, or your family dynamics. It simply applies a formula based on who survives you and in what order.
Florida’s formula is unique in several ways, and most residents are surprised when they learn what it actually says.
Who Inherits If You Die Without a Will in Florida
Florida’s intestate succession rules follow a strict hierarchy. Here’s exactly how your estate would be distributed, depending on your family situation at the time of your death.
If You’re Married With No Descendants
Your surviving spouse inherits 100% of your probate estate. This is the only scenario in Florida where a spouse takes everything by default.
If You’re Married and All Your Children Are Also Your Spouse’s Children
Your surviving spouse still inherits 100% of your probate estate under Fla. Stat. § 732.102. Your children inherit nothing directly at this stage, on the assumption that your spouse will provide for them.
If You’re Married But Have Children From Another Relationship
This is where most Florida families get blindsided. Your surviving spouse inherits half of your probate estate. Your children (from any prior relationship) split the other half equally.
If Your Spouse Has Children From a Prior Relationship (Even If You Don’t)
Same rule. Your spouse gets half. Your descendants (or, if you have none, theirs do not inherit from you) split the rest.
This rule is one of the most misunderstood pieces of Florida estate law, and it produces deeply unintended outcomes for blended families almost every time.
If You’re Unmarried With Children
Your children inherit your entire probate estate, divided equally. If a child has predeceased you, their share passes to their descendants (your grandchildren).
If You’re Unmarried With No Children
Florida moves up your family tree. Your probate estate passes in this order.
- Your parents (equally if both are living)
- Your siblings (and their descendants if a sibling has predeceased you)
- Half to your maternal grandparents and half to your paternal grandparents (or their descendants)
- More distant relatives like aunts, uncles, and cousins
If You Have No Living Relatives at All
In the rare case that no heirs can be located, your estate escheats to the State of Florida. That means everything you spent your life building goes to the State Treasury. It’s uncommon, but it does happen.
Florida’s Homestead Devise Restriction (The Rule Most People Don’t Know)
Even if you do have a will, Florida adds another layer of protection over your homestead property that you cannot override.
Under Article X, Section 4 of the Florida Constitution and Fla. Stat. § 732.401, if you are survived by a spouse or minor children, your homestead cannot be freely devised. Your surviving spouse automatically receives a life estate in the property, and your descendants receive the remainder interest. Alternatively, your spouse can elect to take an undivided one-half interest as a tenant in common with your descendants.
In plain English, this means.
- You cannot leave your home to whomever you choose if you have a spouse or minor children
- Your home becomes co-owned by people who may have very different ideas about what to do with it
- Selling, refinancing, or making major decisions about the home requires all owners’ agreement
This rule is one of the most common reasons Florida families end up in disputes after a death. And it applies whether you have a will or not, which means dying without a will only compounds the problem.
What Doesn’t Pass Through Intestate Succession
Not every asset you own gets caught up in Florida intestate succession. Some assets pass automatically to a named beneficiary or co-owner, regardless of whether you have a will.
These assets bypass intestate succession entirely.
- Life insurance proceeds paid to a named beneficiary
- Retirement accounts (IRAs, 401(k)s, 403(b)s) with named beneficiaries
- Joint bank accounts with rights of survivorship
- Real estate held as joint tenants with rights of survivorship or as tenants by the entirety (between spouses)
- Accounts with transfer on death (TOD) or payable on death (POD) designations
- Assets already held in a living trust
Everything else, your individually owned home, your car, your solo bank account, your business interest, your personal belongings, goes through Florida probate court and is distributed by the intestate succession formula.
This is why beneficiary designations matter as much as a will, and why a properly funded revocable living trust can avoid the entire intestate succession problem.
What Happens to Your Minor Children If You Die Without a Will
For parents, this is the part that should hit hardest.
A will is the only document where you can name a guardian for your minor children. Without one, the court decides who raises your kids. The judge will consider input from family members, but the final decision belongs entirely to the court, not to you.
Even worse, any assets your children inherit go into a guardianship of the property managed by a court-appointed guardian (often a stranger, sometimes a family member who may or may not handle money responsibly). The guardian must file annual accountings, request court permission for major decisions, and answer to a judge until each child turns 18.
Then, on each child’s 18th birthday, they receive their entire inheritance outright. Every penny. No restrictions, no guidance, no protection from creditors, no protection from divorces, no protection from poor financial decisions.
A properly drafted will, combined with a living trust, lets you name guardians, set up structured distributions, and protect your children’s inheritance for as long as they need it.
The Hidden Costs of Dying Without a Will
People sometimes assume that skipping a will saves money. It does the opposite.
Dying intestate triggers the same Florida probate process as dying with a will, but with added complications.
Higher attorney fees because intestate estates often require additional legal work to identify heirs, resolve disputes, and navigate procedural requirements
Longer timelines as the court works through who inherits and in what proportion
Family disputes that turn into litigation when relatives disagree about who should receive what
Court-appointed administrators instead of someone you would have chosen as your personal representative
Guardianship proceedings for any minor children, adding thousands more in costs
Total intestate probate costs in Florida can easily exceed $15,000 to $25,000 for a moderate estate, sometimes far more if the case becomes contested. All of it could have been avoided with a basic estate plan that costs a small fraction of that amount.
What About a Surviving Spouse’s “Elective Share”?
Florida adds one more wrinkle, even for people who do have a will.
Under Fla. Stat. § 732.2065, a surviving spouse has the right to claim 30% of the deceased spouse’s “elective estate,” which includes probate assets, revocable trusts, joint accounts, and certain beneficiary designations. This right cannot be eliminated through a will alone. It can only be waived through a properly drafted prenuptial or postnuptial agreement.
For families with second marriages, blended children, or significant assets passing outside probate, this rule can dramatically change the outcome. Planning ahead with a qualified attorney is the only way to coordinate these moving pieces.
How to Make Sure Florida’s Default Rules Never Apply to Your Family
The good news is that Florida’s intestate succession rules only apply if you let them. A simple, valid estate plan is enough to override the default in almost every situation.
At minimum, every Florida adult should have the following.
- A last will and testament that names beneficiaries, a personal representative, and guardians for minor children
- A durable power of attorney so someone you trust can manage your finances if you become incapacitated
- A healthcare surrogate designation and living will for medical decision-making
- Up-to-date beneficiary designations on all retirement accounts and life insurance policies
For homeowners, parents of minor children, blended families, business owners, or anyone with assets they want to protect more carefully, a revocable living trust added to that foundation provides probate avoidance, privacy, and significantly more flexibility. You can read more about how trusts fit into a complete plan on our trusts overview page, or learn about layered protections for high-risk assets on our asset protection page.
Do I Need a Trust if I Live in Florida?
The point isn’t to over-plan. The point is to have any plan at all, because a plan you wrote will always serve your family better than a formula written by the state.
Contact Us
If you don’t have a will, or you haven’t updated yours in years, you’re letting the state of Florida make some of the most important decisions your family will ever face. That’s a risk no one needs to take, and it’s a problem that can be solved in a single afternoon with the right guidance.
At J. Perez Legal, P.A., we help Miramar and South Florida families build estate plans that reflect their actual wishes, not a default statute. Led by founding attorney Juan J. Perez, our firm offers fair, transparent pricing, plain-English explanations without legal jargon, and the kind of personal attention you only get from a local firm guided by faith and integrity. Whether you need a basic will, a complete estate planning package with trusts and incapacity documents, or a review of an existing plan that may be out of date, our team takes the time to understand your goals before recommending a single document.
Because “we’ll figure it out later” isn’t an estate plan, and your family deserves better.
Reach out today to schedule a consultation with our team. We’ll review your situation, explain your options clearly, and help you take the first step toward true peace of mind.