Probate Without a Will: How Florida Intestate Succession Works

When a person dies in Florida without a valid will, their estate is distributed according to the state’s intestate succession laws, found in Chapter 732 of the Florida Statutes. Rather than the deceased choosing who inherits, a fixed legal formula decides which relatives receive the property and in what proportions. The estate still passes through probate in the county where the decedent lived — for Palm Beach County residents, that means the Probate Division of the Fifteenth Judicial Circuit.

I have walked many Palm Beach families through this process, and the first thing most of them learn is uncomfortable: the law, not their loved one, now writes the inheritance plan. Below is a plain-English explanation of how Florida intestate succession actually works, who counts as an heir, and what surprises tend to catch families off guard.

What “Dying Intestate” Means in Florida

A person who dies intestate died without leaving a legally valid will. Florida also recognizes partial intestacy — where a will exists but fails to dispose of some asset, so that leftover property passes under the intestacy statute. Either way, the controlling rules live in Florida Statutes §§ 732.101 through 732.111.

Intestacy does not mean the state automatically seizes the property. That outcome, called escheat, happens only when no qualifying heir can be found anywhere in the family tree. In practice, escheat is rare. Florida’s statute reaches outward to spouses, children, parents, siblings, and even more distant kin before the property ever goes to the State of Florida under § 732.107.

Which Assets Intestacy Actually Controls

This is the distinction that trips people up most. Intestate succession only governs probate assets — property titled in the decedent’s sole name with no built-in transfer mechanism. A large share of a typical Florida estate never touches the intestacy formula at all.

• Pass outside probate (not controlled by intestacy): jointly held property with rights of survivorship, accounts with payable-on-death or transfer-on-death designations, life insurance and retirement accounts with named beneficiaries, and assets held in a living trust.
• Pass through probate (controlled by intestacy): a solely owned bank account, a car titled only to the decedent, individually held real estate that is not homestead, and personal belongings without a designated recipient.

So before you even ask “who inherits,” the real first question is “which assets are we talking about?” A beneficiary designation made decades ago can override everything the family assumes the law will do.

The Surviving Spouse’s Share Under Florida Law

Florida gives the surviving spouse a strong, protected position, but the size of that share depends entirely on whether descendants exist and who their parents are. Section 732.102 lays out the framework.

1. No surviving descendants: the spouse inherits the entire intestate estate.
2. All descendants are children of both the decedent and the surviving spouse, and the spouse has no other descendants: the spouse again takes the entire intestate estate.
3. The decedent had one or more descendants who are not also descendants of the surviving spouse (a blended-family situation): the spouse takes one-half, and the descendants split the other half.
4. All descendants are shared, but the surviving spouse has at least one descendant from another relationship: the spouse takes one-half, and the decedent’s descendants take the other half.

The blended-family rule is where I see the most heartbreak. A surviving spouse who assumed the house would pass entirely to them may discover that adult stepchildren are now co-owners of half the probate estate. None of it reflects ill will — it is simply the statute operating mechanically.

How Children and Other Descendants Inherit

When property passes to descendants, Florida uses per stirpes distribution under § 732.104. The estate is divided into equal shares at the first generation that has a living member. If a child has predeceased the parent but left children of their own, those grandchildren step into their parent’s place and split that single share among themselves.

A simple illustration: a Palm Beach widower dies intestate with three children, but one child died years earlier leaving two kids. The estate splits into three shares. The two surviving children each take a full third. The deceased child’s third is divided between that child’s two children — one-sixth each.

Adopted, Marital, and Nonmarital Children

• Legally adopted children inherit from their adoptive parents exactly as biological children do, and generally lose inheritance rights from the biological family (§ 732.108).
• Children born outside of marriage can inherit from their father if paternity is established under Florida law — through marriage, court adjudication, or written acknowledgment.
• Stepchildren and foster children who were never legally adopted do not inherit through intestacy, regardless of how close the relationship was.

When There Is No Spouse and No Children

If the decedent left neither a spouse nor descendants, § 732.103 sends the estate up and out along the family tree in a defined order:

1. To the decedent’s parents equally, or to the survivor of them.
2. If no parent survives, to the decedent’s brothers and sisters and their descendants.
3. Failing that, the estate divides into two halves — one to the paternal side and one to the maternal side — reaching grandparents, then aunts, uncles, and cousins.
4. As a final step before escheat, Florida even allows the kindred of a deceased spouse to inherit under a narrow provision.

These remote scenarios are exactly where probate gets expensive and slow, because the personal representative must prove the family tree with records that may stretch back generations.

Florida Homestead: The Major Exception

No discussion of Florida intestacy is complete without homestead. The Florida Constitution and § 732.401 treat the primary residence differently from everything else. If the decedent is survived by a spouse and descendants, homestead does not simply pass under the intestacy share formula.

By default, the surviving spouse receives a life estate in the homestead, with a remainder to the descendants — though the spouse may instead elect to take an undivided one-half tenancy in common within a strict statutory deadline. Homestead also enjoys powerful protection from most creditors, which can preserve the family home even when other assets are exhausted. Because these rules interact with deadlines and elections, homestead is one area where do-it-yourself probate routinely goes wrong.

How the Intestate Estate Gets Administered

Intestacy describes who inherits; probate is the court process that delivers the property. Without a will, there is no nominated executor, so the court appoints a personal representative under the priority list in § 733.301 — the surviving spouse first, then the heir chosen by a majority of the heirs.

Florida offers more than one path through the courthouse. The right one depends on the estate’s size and how long ago the death occurred. Families coming from other states are often surprised that the procedures differ from what they knew up north; our colleagues describe the parallel New York framework in their overview of the , and the contrast highlights why local counsel matters.

• Formal administration: the standard process for larger or contested estates, involving a personal representative, creditor notice, and court supervision.
• Summary administration: available when the probate estate is valued at $75,000 or less, or when the death occurred more than two years ago.
• Disposition without administration: a limited option for very small estates with only exempt property and modest final expenses.

The personal representative must also publish notice to creditors and settle valid claims before heirs receive their shares. That step alone can add months. If you are navigating a complex or multi-state estate, it is worth comparing how a in another jurisdiction, because assets in more than one state may require ancillary administration.

Why Intestacy Rarely Matches What Families Want

After two decades around Florida probate courts, my honest takeaway is this: the intestacy statute is a fair default, but it is a default. It cannot know that you wanted your longtime partner protected if you never married, that one child needs more help than another, or that you intended a charity to receive something. It cannot reduce the cost or delay of probate. And it offers no privacy, because the entire process is a matter of public record.

A modest amount of planning — a will, perhaps a revocable trust, and updated beneficiary designations — replaces the statute’s one-size-fits-all formula with your own choices. If you want to understand the alternatives, start with our pages on Florida wills and the broader Florida probate process, and the Palm Beach families we serve often find that an hour of planning saves their heirs months of court.

Talk to a Palm Beach Probate Attorney

Whether you are administering the estate of a relative who died without a will or trying to avoid putting your own family through intestacy, sound guidance makes the difference. Our team handles intestate estates throughout Palm Beach County and can explain exactly how the formula applies to your situation. You can also review the firm’s or contact our office to schedule a consultation.

This article is general information about Florida law and is not legal advice. Intestate succession outcomes turn on the specific facts of each estate; consult a licensed Florida probate attorney about your circumstances.

Frequently Asked Questions

Who inherits if someone dies without a will in Florida?

Florida’s intestate succession statute (Chapter 732) decides. A surviving spouse inherits the entire probate estate if there are no descendants, or if all descendants are children of both spouses. In blended families, the spouse takes half and the decedent’s descendants share the other half. With no spouse, property passes to children, then parents, then siblings and more distant relatives.

Does the State of Florida take the property if there is no will?

Almost never. The state only receives an estate through ‘escheat’ under Section 732.107 when no qualifying heir can be located anywhere in the family tree. Florida’s statute reaches spouses, descendants, parents, siblings, grandparents, aunts, uncles, and cousins before any property goes to the state.

Does intestate succession control all of the decedent's assets?

No. Intestacy governs only probate assets titled in the decedent’s sole name. Jointly owned property with survivorship rights, payable-on-death and transfer-on-death accounts, life insurance and retirement accounts with named beneficiaries, and trust assets all pass outside probate and are not affected by the intestacy formula.

What happens to the family home in a Florida intestate estate?

Florida homestead is treated separately under Section 732.401 and the state constitution. If the decedent is survived by a spouse and descendants, the spouse generally receives a life estate with a remainder to the descendants, or may elect a one-half tenancy in common within a strict deadline. Homestead also carries strong creditor protection.

Who serves as personal representative when there is no will?

Because no executor was named, the court appoints a personal representative using the priority order in Section 733.301: the surviving spouse first, then the person selected by a majority of the heirs. That representative must give notice to creditors and settle valid claims before distributing shares to the heirs.