When a Florida resident dies with no will (known as intestacy), Florida inheritance laws provide who in the family is entitled to inherit from the estate.
If the Decedent Died with a Surviving Spouse
The surviving spouse takes the following portion of an estate (Florida Statute Section 732.102):
- If there is no surviving descendant of the decedent, the entire intestate estate.
- If there are surviving descendants of the decedent, all of whom are also lineal descendants of the surviving spouse, and the surviving spouse has no other descendants, the entire intestate estate.
- If there are surviving descendants, one or more of whom are not lineal descendants of the surviving spouse, one-half of the intestate estate.
- If there are one or more descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, one-half of the intestate estate.
The remainder of the Estate passes as follows:
- To the descendants of the decedent.
- If there is no descendant, to the decedent’s father and mother equally, or to the survivor of them.
- If there is none of the foregoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.
- If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order:
- To the grandfather and grandmother equally, or to the survivor of them.
- If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
- If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
- If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.
If the Decedent Died Without a Surviving Spouse
The part of the intestate estate not passing to the surviving spouse, or the entire intestate estate if there is no surviving spouse, as follows (Florida Statute Section 732.103):
- To the descendants of the decedent.
- If there is no descendant, to the decedent’s father and mother equally, or to the survivor of them.
- If there is none of the foregoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.
- If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order:
- To the grandfather and grandmother equally, or to the survivor of them.
- If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
- If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
- If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.
Under Florida inheritance laws with no will, for the non-spouse heirs, the first three provisions are easy: “down” (to children and/or grandchildren); if no children, then “up” (to parents); and if no parents, then “sideways” and “diagonally” (to siblings and the children of deceased siblings, who would be nieces and nephews).
After that, the Florida inheritance laws with no will get a little trickier. The decedent’s estate would go to grandparents, if alive. If there are no living grandparents, then the estate goes to the aunts and uncles of the deceased and their descendants. Finally, the estate passes to the family of the last deceased spouse of the decedent.
Can Intestacy be Litigated?
Yes, any heir of an estate (or purported heir) can challenge the status of any other potential heir. Paternity litigation is common in Florida.
Can Cousins Inherit?
Yes. The rule on cousins is that the grandparent of a deceased person becomes the common ancestor of any other heir who can inherit. A great grandparent is too far removed and cannot qualify as the common ancestor. See cousin inheritance in Florida.
Can Children Conceived After Death Inherit?
Yes, but only if named in a will.
In Steel v. Comm’r of Soc. Sec., SC2022-1342 (Fla. 2024), the Florida Supreme Court was asked by the United States Circuit Court for the Eleventh Circuit to answer questions under one of Florida’s reproductive technology statutes to determine entitlement to Social Security benefits of a child conceived after the death of the wage earner.
Inheritance Rights of Children Conceived Post-Death in Florida
Florida law requires a written agreement for couples utilizing certain reproductive technologies, and provides default rules in the absence of a written agreement. Section 742.17(4) provides that a child conceived after death of the Decedent shall not inherit, unless the child has been provided for by the decedent’s will.
742.17 Disposition of eggs, sperm, or preembryos; rights of inheritance.—A commissioning couple and the treating physician shall enter into a written agreement that provides for the disposition of the commissioning couple’s eggs, sperm, and preembryos in the event of a divorce, the death of a spouse, or any other unforeseen circumstance.
(1) Absent a written agreement, any remaining eggs or sperm shall remain under the control of the party that provides the eggs or sperm.
(2) Absent a written agreement, decisionmaking authority regarding the disposition of preembryos shall reside jointly with the commissioning couple.
(3) Absent a written agreement, in the case of the death of one member of the commissioning couple, any eggs, sperm, or preembryos shall remain under the control of the surviving member of the commissioning couple.
(4) A child conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or preembryos to a woman’s body shall not be eligible for a claim against the decedent’s estate unless the child has been provided for by the decedent’s will.
In the Steele case, the Decedent deposited sperm with a facility and died. His surviving spouse used the sperm and conceived a child. The child’s mother applied for social security survivor benefits, as the child of a deceased wage earner. The Social Security Administrative law judge and District Court determined that the child was not legally the child of the Decedent. The District Court considered the inheritance rights of the child in reaching its decision. On appeal, the Eleventh Circuit asked for guidance from the Florida Supreme Court on the question of the inheritance rights of the child.
Specifically, the Eleventh Circuit asked for answers to the following questions:
(1) Under Florida law, is P.S.S. ‘provided for’ in the decedent’s will within the meaning of Fla. Stat. § 742.17(4)?
(2) If the answer is yes, does Florida law authorize a posthumously conceived child who is provided for in the decedent’s will to inherit intestate the decedent’s property?
The Decedent’s will devised all of his property to his surviving spouse. If deceased, the estate was left to his “then living” children.
The Florida Supreme Court analyzed the questions as follows:
Under the statute, a will must “provide[] for” a posthumously conceived child in order for that child to “be eligible for a claim against the decedent’s estate.” Id. The term “provided for” is not defined in the statute or in any other part of chapter 742; nor have we had occasion to consider it in the context of this statute.
In Ganier’s Estate v. Ganier’s Estate, 418 So.2d 256, 258 (Fla. 1982), we considered the pretermitted-spouse statute, which protects “a spouse whom the testator . . . marrie[s] after executing a will” from “inadvertent disinheritance.” Id.; cf. § 732.301, Fla. Stat. (1977) (pretermitted-spouse statute).[3] By its terms, that statute does not apply if the surviving spouse is “provided for” in the relevant will. In interpreting this term, we held: “[A] spouse has not been ‘provided for,’ within the meaning of section 732.301(2), unless the testator both provided for a person named in the will executed before marriage and made such provision in contemplation of marriage to that named person.” Ganier’s Estate, 418 So.2d at 260 (emphasis added).
We think that our interpretation of “provided for” in that case has some relevance here since giving something to someone encompasses contemplation of the recipient. Thus, in the context of section 742.17, contemplation of the post-death conception of a child would be necessary in order for that child to be provided for in the will.
Therefore, based on our analysis above, we conclude that “provided for” in section 742.17(4) means that the testator actually left something to the posthumously conceived child through the will. Or, put another way, the child must have some inheritance right under the will. As part of this requirement, the will must show that the testator contemplated the possibility of a child being conceived following his or her death.
Assessed against this standard, Mr. Steele’s will does not “provide for” P.S.S. No part of the will acknowledges the possibility of children being conceived after Mr. Steele’s death. To be sure, the will references afterborn or adopted children. But that mention of later-born children, as we read Mr. Steele’s will, refers most naturally to children born after his will was drafted but conceived before his death, i.e., when the dispositional portions of the will create vested rights. See § 732.514, Fla. Stat. (2019); see also § 732.106, Fla. Stat. (2019) (defining afterborn heirs in a similar fashion). Thus, this reference to later-born children would not cover P.S.S., who was conceived after Mr. Steele’s death.
But, even if we found that post-death conception was in some generic sense contemplated by Mr. Steele, P.S.S. could not have received anything under the will. Mr. Steele’s will conveyed all relevant property to Ms. Steele. In the event that Ms. Steele had died before Mr. Steele, the tangible personal property would have been distributed to his “then living children.” By its terms, this fallback provision only applied to children living at the time Mr. Steele died and necessarily excluded any posthumously conceived children, like P.S.S. Therefore, as it was impossible for P.S.S. to inherit anything from the will, it is clear that Mr. Steele did not provide for P.S.S. as contemplated by section 742.17(4).
Who are Next of Kin in Florida?
- Spouse
- Children (descendants of decedent)
- Parents
- Siblings
- Grandparents
- Uncles and Aunts
- Kindred of last deceased spouse
- Holocaust survivors, if any, descended from decedent’s great grandparents.
To determine the next of kin under Florida law, start at the top of the list and work down until someone in the category exists that survived the decedent. That category is the class of next of kin.
What is the difference between “next of kin” and an “heir at law”?
“Next of kin” in Florida is defined in Florida’s guardianship code section 744.102 as:
those persons who would be heirs at law of the ward or alleged incapacitated person if the person were deceased and includes the lineal descendants of the ward or alleged incapacitated person.
Therefore, “next of kin” are synonymous with “heirs at law.”
“Heirs at law” in Florida are defined in Florida’s probate code section 731.201 as:
those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.
Of course, if there is a will, the will controls who inherits, not the definition of heir at law.
