Probate Without a Will: How Florida Intestate Succession Works

When a Florida resident dies without a valid will, their property does not go to the state by default. Instead, it passes through a court-supervised process called intestate succession, governed by Chapter 732 of the Florida Statutes, which sets a fixed order of heirs—spouse first, then children and other relatives. Probate without a will simply means the court applies these statutory rules to identify who inherits and in what shares.

People often assume that dying without a will throws an estate into chaos, or that the government swoops in and takes everything. Neither is true in Florida. The Legislature has already written a “default will” for you—it’s just that you don’t get to choose its terms. As a Miami probate attorney, I spend a fair amount of time explaining to grieving families that the law has a plan, even when their loved one did not. Whether that plan matches what the deceased actually wanted is another question entirely.

What Does It Mean to Die Intestate in Florida?

“Intestate” is the legal term for dying without a valid will. If you leave no will, an invalid will, or a will that fails to dispose of all your property, the undisposed assets are distributed according to Florida’s intestate succession statutes. The estate still goes through probate in the county where the decedent lived—for Miami residents, that’s the Probate Division of the Eleventh Judicial Circuit Court in Miami-Dade County.

One critical point that surprises many families: intestate succession only controls probate assets. A great deal of property never touches the intestacy statutes at all because it passes outside of probate by operation of law. That includes:

• Life insurance proceeds and retirement accounts (401(k), IRA) with a named beneficiary
• Bank or brokerage accounts titled “payable on death” (POD) or “transfer on death” (TOD)
• Real estate or accounts held in joint tenancy with right of survivorship or as tenants by the entirety
• Assets already held in a living trust
• Florida homestead property, which has its own special constitutional and statutory descent rules

So the intestacy rules under Florida Statutes §732.101 apply to whatever is left—the solely owned bank account, the car, the investment property with no survivorship language, the personal belongings. Sorting out which bucket each asset falls into is usually the first real task in an intestate estate.

Who Inherits Under Florida Intestate Succession?

Florida’s order of heirs is laid out in §732.102 (the surviving spouse) and §732.103 (everyone else). The statute walks down a hierarchy, stopping at the first level where a living relative exists.

The Surviving Spouse’s Share (§732.102)

Florida’s spousal rules changed meaningfully in 2011, and many people are still working from outdated assumptions. Under the current version of §732.102, the surviving spouse’s share depends entirely on whether there are descendants—and whose descendants they are:

1. No surviving descendants: the spouse inherits the entire intestate estate.
2. All descendants are shared by the decedent and the surviving spouse, and the spouse has no other descendants: the spouse again inherits the entire intestate estate. This is the classic “everyone is from this marriage” scenario.
3. The decedent has one or more descendants who are not also descendants of the surviving spouse: the spouse receives one-half of the intestate estate, 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 receives one-half, and the decedent’s descendants take the other half.

In plain terms: blended families are where the spouse’s automatic-everything assumption breaks down. If your spouse had a child from a prior relationship, that stepchild’s bloodline can claim half of the intestate estate—a result that shocks many surviving spouses who assumed they would receive it all.

When There Is No Surviving Spouse (§732.103)

If the decedent left no spouse, or after the spouse’s share is carved out, the remaining estate descends in this order:

• To the descendants (children, then grandchildren, and so on) per stirpes
• If no descendants, to the parents equally, or to the surviving parent
• If no parents, to the decedent’s brothers and sisters and the descendants of deceased siblings, per stirpes
• If none of the above, the estate splits—one half to the paternal kindred and one half to the maternal kindred (grandparents, then aunts, uncles, and their descendants)
• If kindred exist on only one side, that side takes the whole estate
• As a final fallback, 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 this chain does the property “escheat” to the State of Florida under §732.107—an outcome that is genuinely rare.

How Florida Divides Shares: Per Stirpes Explained (§732.104)

Florida uses a per stirpes system of distribution, defined in §732.104. “Per stirpes” means “by the root” or “by the branch.” Each branch of the family receives an equal share at the generation closest to the decedent, and if a member of that generation has died, their children divide that branch’s share among themselves.

A concrete example helps. Suppose a Miami widow dies intestate with three children, and one child predeceased her, leaving two grandchildren. The estate splits into three equal branches—one for each child. The two living children each take their full one-third. The deceased child’s one-third does not vanish or get redistributed to the siblings; instead, it drops down to that child’s two children, who split it, taking one-sixth each. The branch is preserved.

This is different from a strict “per capita” approach, and it is the single most common point of confusion I see among families trying to predict who gets what.

Special Rules That Catch People Off Guard

Half-Blood Relatives (§732.105)

When the estate passes to collateral relatives—siblings, for instance—a half-sibling (sharing only one parent with the decedent) inherits half as much as a whole-blood sibling. If every sibling is of the half blood, they inherit equal shares. This statute quietly reshapes many sibling estates.

Afterborn Heirs and Adopted Children (§732.106 and §732.108)

A child conceived before the decedent’s death but born afterward inherits as if born during the decedent’s lifetime. Legally adopted children inherit fully from their adoptive family and generally lose inheritance rights from their biological parents. Stepchildren who were never legally adopted, by contrast, inherit nothing under intestacy—a hard reality for many close stepfamily relationships.

Children Born Outside of Marriage (§732.108)

A child born to unmarried parents inherits from the mother automatically and from the father if paternity is established by law, by the father’s acknowledgment in writing, or by the parents’ later marriage. Establishing paternity after death can become a significant probate dispute.

The 120-Hour Survival Rule (§732.601)

To inherit through intestacy, an heir generally must survive the decedent by at least 120 hours. If the survival can’t be proven by clear and convincing evidence, the heir is treated as having predeceased—a rule designed for simultaneous-death situations like a shared accident.

What Probate Without a Will Actually Looks Like in Miami

The absence of a will does not change the basic machinery of probate; it changes who is in charge and how heirs are identified. The process generally unfolds like this:

1. Petition for administration is filed with the Miami-Dade Probate Division, asking the court to open the estate.
2. Appointment of a personal representative. Without a will naming an executor, §733.301 sets the priority: the surviving spouse first, then the heir selected by a majority of the heirs, then the heir nearest in degree. Florida also imposes residency and qualification requirements on who may serve.
3. Determination of heirs. The court formally identifies who the legal heirs are under Chapter 732—often the most contested step in an intestate estate.
4. Notice to creditors and payment of valid claims, after which assets are distributed according to the intestacy shares.

Florida offers two main paths: formal administration for larger estates, and summary administration for estates under $75,000 (excluding exempt property) or where the decedent has been dead more than two years. For very modest estates with no real property, a “disposition without administration” may even avoid a full proceeding.

The fact that probate procedures vary by state—and by the size and type of estate—is something families with assets in more than one jurisdiction quickly learn. If you’re comparing how this works elsewhere, our colleagues at Morgan Legal explain , which differ from Florida’s framework in several meaningful ways.

Why an Intestate Estate Is Usually Harder Than One With a Will

Clients sometimes ask whether skipping a will saves money or hassle. The honest answer is that it almost never does. Intestate estates tend to be slower and more expensive because:

• Heirs must be proven, not simply named. Locating and documenting every legal heir—including estranged relatives, half-siblings, and out-of-state descendants—takes time and often requires genealogical proof.
• There is no chosen fiduciary. Family members may fight over who serves as personal representative.
• The outcome may contradict the decedent’s wishes. A long-term unmarried partner, a charity, a favorite niece, or a stepchild the decedent raised will receive nothing, because intestacy follows bloodlines and marriage, not affection.
• Disputes are more likely. Without a document expressing intent, disagreements over paternity, marital status, or share size can turn into litigation.

For families managing a proceeding directly, it helps to understand the mechanics of how the court takes control of assets and resolves claims. Morgan Legal’s overview of is a useful primer on the universal steps, even though the New York statutes themselves differ from Florida’s.

Can You Avoid Intestacy?

Yes—and it’s straightforward. A validly executed will, a properly funded revocable living trust, beneficiary designations, and survivorship titling all keep property out of the intestacy default. The goal isn’t to avoid probate for its own sake; it’s to make sure the right people inherit, the right person administers, and your family is spared months of avoidable uncertainty. If you’d like to put a plan in place, start with our wills and estate planning page or contact our Miami office for a consultation. Florida residents with property in other states can also reach Morgan Legal’s for multi-jurisdiction coordination.

And if a loved one has already passed without a will, you don’t have to interpret Chapter 732 alone. Our Florida probate attorneys guide families through heir determination, personal representative appointment, and distribution from start to finish.

Frequently Asked Questions

Does the State of Florida take my property if I die without a will?

Almost never. Florida law (§732.103) sends your property to a long line of relatives—spouse, children, parents, siblings, and even distant kindred on both sides of your family—before any property would “escheat” to the state. The state inherits only if no living heir can be found anywhere in that chain, which is extremely rare.

How much does my spouse inherit if I die intestate in Florida?

Under §732.102, your spouse inherits everything if you have no descendants, or if all your descendants are shared with that spouse and the spouse has no other children. But if you have a child from another relationship—or your spouse does—the surviving spouse receives only one-half of the intestate estate, with the descendants taking the other half.

What happens to Florida homestead property when there’s no will?

Homestead has special descent rules under the Florida Constitution and §732.401, separate from ordinary intestacy. If there is a surviving spouse and descendants, the spouse typically receives a life estate (or may elect a one-half interest) and the descendants take the remainder. Because homestead is treated differently from other assets, it’s an area where mistakes are common and legal advice is especially valuable.

Do stepchildren inherit under Florida intestate succession?

No. Stepchildren who were never legally adopted inherit nothing through intestacy, no matter how close the relationship was. Florida intestacy follows legal bloodlines, marriage, and lawful adoption. The only way to provide for a stepchild is through a will, trust, or beneficiary designation.

Who is in charge of an estate when there’s no will?

The court appoints a personal representative under §733.301. Priority goes first to the surviving spouse, then to the person selected by a majority of the heirs, then to the heir nearest in degree. The appointee must also meet Florida’s qualification and residency requirements to serve.

Frequently Asked Questions

Does the State of Florida take my property if I die without a will?

Almost never. Florida law (§732.103) sends your property to a long line of relatives—spouse, children, parents, siblings, and even distant kindred on both sides of your family—before any property would escheat to the state. The state inherits only if no living heir can be found anywhere in that chain, which is extremely rare.

How much does my spouse inherit if I die intestate in Florida?

Under §732.102, your spouse inherits everything if you have no descendants, or if all your descendants are shared with that spouse and the spouse has no other children. But if you have a child from another relationship—or your spouse does—the surviving spouse receives only one-half of the intestate estate, with the descendants taking the other half.

What happens to Florida homestead property when there's no will?

Homestead has special descent rules under the Florida Constitution and §732.401, separate from ordinary intestacy. If there is a surviving spouse and descendants, the spouse typically receives a life estate (or may elect a one-half interest) and the descendants take the remainder. Because homestead is treated differently from other assets, it’s an area where mistakes are common and legal advice is especially valuable.

Do stepchildren inherit under Florida intestate succession?

No. Stepchildren who were never legally adopted inherit nothing through intestacy, no matter how close the relationship was. Florida intestacy follows legal bloodlines, marriage, and lawful adoption. The only way to provide for a stepchild is through a will, trust, or beneficiary designation.

Who is in charge of an estate when there's no will?

The court appoints a personal representative under §733.301. Priority goes first to the surviving spouse, then to the person selected by a majority of the heirs, then to the heir nearest in degree. The appointee must also meet Florida’s qualification and residency requirements to serve.