Probate Without a Will in Florida: How Intestate Succession Decides Who Inherits

When a Florida resident dies without a valid will, their property does not go to the state by default, and it does not go to whoever asks for it first. Instead, the assets pass under Florida’s intestate succession statutes (Chapter 732 of the Florida Statutes), a fixed legal formula that ranks surviving relatives and dictates exactly who inherits and in what proportion. Dying without a will is called dying intestate, and the probate court applies that statutory order whether or not it matches what the deceased person would have wanted.

I have spent years guiding South Florida families through probate, and the single most common misconception I hear is some version of “everything just goes to my spouse.” Sometimes it does. Often it does not. The truth depends on whether there are children, whether those children are also the spouse’s children, and what kind of property is involved. Let me walk you through how Florida actually answers the question.

What “Intestate” Really Means in Florida Probate

Intestate succession is the set of rules that controls distribution of a decedent’s probate estate when there is no will, or when a will fails to dispose of some asset. The governing law is Florida Statutes Chapter 732, with the procedural side handled under the Florida Probate Code (Chapter 733). The key phrase there is probate estate. Intestacy only reaches assets that would have passed through probate in the first place.

That distinction matters enormously. Many assets bypass probate entirely and are therefore untouched by intestate succession, including:

• Life insurance proceeds and retirement accounts (IRAs, 401(k)s) with a named beneficiary;
• Property held as joint tenants with right of survivorship or as tenancy by the entirety between spouses;
• Bank or brokerage accounts with a valid payable-on-death (POD) or transfer-on-death (TOD) designation;
• Assets already titled in the name of a living trust.

So before anyone applies the intestacy formula, the threshold question is always: which assets are actually in the probate estate? I have watched families assume a fight was coming over a brokerage account, only to discover it had a POD beneficiary and never touched probate at all.

The Surviving Spouse’s Share Under Florida Law

The spouse’s intestate share is set by Fla. Stat. § 732.102, and it is more nuanced than most people expect. There are three scenarios:

1. No surviving descendants. If the decedent leaves a spouse but no children or other descendants, the spouse inherits the entire intestate estate.
2. All descendants are shared. If every one of the decedent’s surviving descendants is also a descendant of the surviving spouse — in plain terms, the couple’s mutual children — and the spouse has no other living descendants, the spouse still takes the entire estate.
3. Blended family. If the decedent has at least one descendant who is not the surviving spouse’s descendant, or the surviving spouse has a descendant who is not the decedent’s, the spouse receives one-half of the intestate estate and the decedent’s descendants split the other half.

That third scenario is the one that surprises blended families most. A man who remarries late in life, has two adult children from a first marriage, and dies without a will does not leave everything to his new wife under intestacy. She takes half; his children share the other half. This is precisely the kind of outcome a will or trust is designed to control, and its absence is a frequent source of in second-marriage households.

What Happens to the Children’s Share

The portion that does not go to the spouse — or the entire estate when there is no surviving spouse — passes to the decedent’s descendants under Fla. Stat. § 732.103. Florida distributes that share per stirpes, defined in Fla. Stat. § 732.104.

Per stirpes means “by the root.” Each branch of the family takes an equal share at the generational level where there is a living taker. If a daughter predeceased the parent but left two children, those grandchildren split the share their mother would have received. So if a decedent had three children and one died first leaving two kids, the estate divides into thirds: the two surviving children take a third each, and the two grandchildren each take one-sixth (splitting their parent’s third).

Adopted and Non-Marital Children

Florida treats legally adopted children exactly as biological children for inheritance purposes; the adoptive relationship replaces the biological one for intestacy (Fla. Stat. § 732.108). Children born outside of marriage inherit from the mother automatically and from the father if paternity is established under the statute — for example, by the parents’ later marriage, a court adjudication, or the father’s written acknowledgment.

When There Is No Spouse and No Children

If the decedent leaves neither a surviving spouse nor descendants, Fla. Stat. § 732.103 sends the estate up and out along the family tree in this order:

• To the decedent’s parents equally, or to the survivor of them;
• If no parents survive, to the decedent’s siblings and their descendants, per stirpes;
• If none, the estate splits — half to the paternal side (grandparents, then aunts/uncles and their descendants) and half to the maternal side;
• Finally, to the kindred of the last deceased spouse as if that spouse had survived and then died intestate.

Only if no heir can be found anywhere in that chain does the estate escheat to the State of Florida under Fla. Stat. § 732.107 — and in practice that almost never happens, because the statute reaches surprisingly distant relatives before the state ever gets a dollar.

The Homestead Exception You Cannot Ignore

No discussion of Florida intestacy is complete without homestead, and this is where Florida diverges sharply from other states. The Florida Constitution (Art. X, § 4) and Fla. Stat. § 732.401 give the family home special protection that overrides the ordinary intestate formula.

If the decedent is survived by a spouse and descendants, the surviving spouse takes a life estate in the homestead, with the descendants taking a vested remainder — unless the spouse timely elects, instead, to take an undivided one-half interest as a tenant in common. Homestead is also generally protected from the decedent’s creditors when it passes to heirs. The practical effect is that the family home often does not follow the same path as the rest of the intestate estate, and the surviving spouse has an important, time-sensitive election to make. Missing that election window is a costly mistake I see far too often.

How the Probate Itself Works Without a Will

Dying intestate does not avoid probate — if anything it can complicate it. Without a will naming a personal representative, the court appoints one according to the statutory preference in Fla. Stat. § 733.301: the surviving spouse first, then the person selected by a majority of the heirs, then the heir nearest in degree. Florida offers two main paths:

• Summary administration — available when the probate estate is worth $75,000 or less (excluding exempt property), or when the decedent has been dead more than two years (Fla. Stat. § 735.201). It is faster and cheaper, with no formal personal representative.
• Formal administration — the full court-supervised process under Chapter 733, required for larger or contested estates, involving appointment of a personal representative, creditor notice, and an inventory.

Where guardianship and probate intersect, intestacy adds another layer. When a vulnerable adult dies during an active guardianship and left no will, the guardianship court file frequently becomes ground zero for disputes over who the rightful heirs are and whether the now-deceased ward had capacity to handle assets in their final years. Those contested guardianship-to-probate transitions are among the most fact-intensive matters we handle. For a deeper look at the underlying court process, see our overview of Florida probate administration and our discussion of why a will protects your family.

Why Intestacy Is Rarely What the Family Wanted

The intestate statutes are a one-size-fits-all default. They cannot account for a stepchild you raised but never adopted, a charity you cared about, an unmarried partner of twenty years (who inherits nothing under Florida intestacy), or a child you wished to provide for differently. The legislature wrote a reasonable guess at the “average” family’s wishes; your family is not average.

Because intestate distributions are mandatory rather than discretionary, the most common litigation is not over what the statute says but over who qualifies as an heir — disputed paternity, common-law marriage claims from other states, or the validity of a late-found document. Our New York team handles parallel disputes in a , and our Florida attorneys handle the same fights here. If you are facing an intestate estate in South Florida, our can help you map the heirs, open administration correctly, and protect the homestead before deadlines pass.

The clearest lesson from every intestate file I have opened is also the simplest: a properly drafted will or trust costs a fraction of what an intestate dispute costs your heirs. If you would like to review your options or you are administering an estate without a will, contact our office for a consultation.

Frequently Asked Questions

Does dying without a will in Florida mean the state takes everything?

No. This is one of the most persistent myths about probate. Florida’s intestate succession statutes (Chapter 732) pass your estate to surviving relatives in a fixed order — spouse, descendants, parents, siblings, and out to more distant kindred. The estate only escheats to the State of Florida under Fla. Stat. § 732.107 if no heir can be located anywhere in that chain, which is extremely rare.

If I'm married with no children and my spouse dies without a will, do I inherit everything?

Yes, in that exact scenario. Under Fla. Stat. § 732.102, a surviving spouse takes the entire intestate estate when there are no surviving descendants. The spouse also takes everything when all of the decedent’s descendants are shared children of the couple and the spouse has no other descendants. The share drops to one-half only in blended-family situations where stepchildren are involved.

How are grandchildren handled if my child dies before I do?

Florida distributes a descendant’s share per stirpes (Fla. Stat. § 732.104), meaning ‘by the root.’ If your child predeceases you but leaves children of their own, those grandchildren split the exact share their parent would have received. The estate is not redistributed equally among everyone in the younger generation; each family branch keeps its proportion.

What happens to my house under Florida intestacy?

The homestead is treated specially under the Florida Constitution (Art. X, § 4) and Fla. Stat. § 732.401. If you leave a spouse and descendants, your spouse generally receives a life estate with the descendants holding the remainder, unless the spouse timely elects to take a one-half tenancy-in-common interest instead. Homestead is also largely shielded from creditors, so it often follows a different path than the rest of the estate. The spousal election is time-sensitive.

Can my unmarried partner inherit if I die without a will in Florida?

No. Florida intestate succession recognizes only legal spouses and blood or adoptive relatives. An unmarried partner — no matter how long the relationship — inherits nothing through intestacy. The only way to provide for a partner is an estate plan, such as a will, a trust, or beneficiary and survivorship designations on specific assets.