Estate litigation in Florida refers to the contested legal proceedings that arise when heirs, beneficiaries, or creditors disagree about how a deceased person’s estate is administered or distributed. These disputes are filed within the probate division of the circuit court and are governed primarily by the Florida Probate Code (Chapters 731 through 735 of the Florida Statutes) and the Florida Probate Rules. When someone dies without a will—a situation the law calls dying “intestate”—the risk of conflict often rises, because there is no document expressing the decedent’s wishes and the family must rely entirely on the statutory rules of inheritance.
I’ve handled probate matters in Miami-Dade for years, and the pattern repeats itself. A parent passes away unexpectedly. There’s a house in Little Havana, a bank account, maybe a small business. No will was ever signed. Within weeks, siblings who got along fine at the funeral are no longer speaking, and a clerk’s office filing has turned into a multi-year fight. Understanding why these disputes happen—and how Florida law resolves them—is the first step toward protecting what you’re entitled to.
Why Intestate Estates Breed Heir Disputes
When a person dies with a valid will, the document names a personal representative and tells the court who gets what. When there’s no will, Florida’s intestacy statutes step in. Section 732.102 governs the surviving spouse’s share, and Section 732.103 dictates how the remainder passes to descendants, parents, and more distant relatives. These rules are rigid by design, but they don’t account for the messy realities of modern families.
Consider a few common flashpoints I see in intestate cases:
- Blended families. A surviving spouse and children from a prior marriage rarely have aligned interests. Under Section 732.102, when the decedent has descendants who are not also descendants of the surviving spouse, the spouse takes one-half of the intestate estate and the descendants split the other half. Stepchildren and stepparents frequently clash over this division.
- Unmarried partners. Florida does not recognize common-law marriage entered into after 1968. A long-term partner who was never legally married to the decedent inherits nothing under intestacy, which often triggers bitter litigation against the legal heirs.
- Unequal contributions. One child who lived with and cared for an aging parent may feel entitled to more than a sibling who moved away. Intestacy doesn’t reward caregiving, and resentment follows.
- Disputed paternity or unknown heirs. When a decedent may have had children outside a marriage, determining the class of heirs can require DNA evidence and adversary proceedings.
The absence of a will removes the most powerful tool for preventing these arguments. That’s precisely why estate planning matters—and why our guide to Florida wills exists. But once a person has died intestate, the family is left to litigate.
The Most Common Types of Estate Litigation in Florida
Will Contests
A will contest challenges the validity of a will that has been offered for probate. Even in cases that begin as suspected intestate estates, a will sometimes surfaces—and an heir who would have done better under intestacy may have reason to challenge it. Under Florida Statutes Section 733.107, the burden of establishing a will’s formal validity falls initially on the proponent; once a prima facie case is made, the burden shifts to the contestant to prove a ground for invalidity.
The recognized grounds for setting aside a will include lack of testamentary capacity, undue influence, fraud, duress, mistake, and improper execution under Section 732.502. Undue influence is the ground I litigate most often. Florida courts look at factors first laid out in the well-known case In re Estate of Carpenter, such as whether the alleged influencer was present when the will was executed, helped procure the witnesses, or had a confidential relationship with the decedent. For an in-depth look at how these challenges unfold in a comparable jurisdiction, Morgan Legal’s discussion of is a useful companion read; many of the underlying principles—capacity, undue influence, proper execution—track closely across states.
Disputes Over the Personal Representative
In an intestate estate, there’s no nominated executor, so the court appoints a personal representative according to the priority list in Section 733.301. The surviving spouse has first preference; if there’s no spouse, the person selected by a majority interest of the heirs is next. This is fertile ground for conflict. Two siblings each holding an equal share can deadlock over who should serve.
Once appointed, a personal representative owes fiduciary duties to the estate and its beneficiaries. When those duties are breached—through self-dealing, commingling funds, failing to account, or simply sitting on the estate—heirs can petition to remove and surcharge the fiduciary under Sections 733.504 and 733.609.
Breach of Fiduciary Duty and Accounting Demands
Beneficiaries have a statutory right to information. A personal representative must file an inventory and, ultimately, a final accounting. When heirs suspect assets are being hidden or mismanaged, they can compel a formal accounting and object to it line by line. These objections often expose the real disputes: a vacation taken on estate funds, a car “gifted” to one heir, or property sold below market value to a friend.
Spousal Rights Litigation
Florida gives surviving spouses powerful protections that can override other distributions. The elective share under Section 732.201 entitles a surviving spouse to 30% of the elective estate, regardless of what a will (or intestacy) would otherwise provide. There are also homestead rights under Article X, Section 4 of the Florida Constitution, a family allowance under Section 732.403, and exempt property rights. In Miami’s real estate market, homestead disputes alone can be worth more than the entire rest of the estate.
How Florida Estate Litigation Actually Proceeds
Most people are surprised by how structured contested probate is. It isn’t an informal family meeting; it’s full-blown civil litigation grafted onto the probate process. Here is the typical arc of a disputed intestate estate:
- Opening the estate. Someone petitions for administration in the circuit court of the county where the decedent lived—Miami-Dade for our local clients. The court determines heirs and appoints a personal representative.
- Filing an adversary proceeding. Under Florida Probate Rule 5.025, certain matters—will contests, removal of a fiduciary, determination of beneficiaries—are designated “adversary proceedings” and follow the formal Rules of Civil Procedure, including pleadings, service, and discovery.
- Discovery. Depositions of family members and caregivers, subpoenas for medical and financial records, and sometimes expert testimony from physicians on capacity. This is where cases are won or lost.
- Mediation. Florida courts routinely order probate disputes to mediation. The vast majority settle here, often because the emotional and financial cost of trial becomes clear.
- Trial and appeal. If mediation fails, the matter is tried—usually to a judge, not a jury, in the probate division. Appeals go to the relevant District Court of Appeal.
For a broader picture of how administration and litigation interlock, Morgan Legal’s overview of walks through the same machinery from the administration side. The labels differ by state, but the sequence—open, inventory, resolve disputes, distribute, close—is consistent. Our own Florida probate overview maps the local procedure in detail.
Deadlines That Can Make or Break a Claim
Florida probate is unforgiving about time. Miss a deadline and a legitimate claim can vanish. A few that I flag for every client:
- Will contests: Under Section 733.212, an interested person who is served with notice of administration generally has just three months to file an objection to the validity of the will, the venue, or the qualifications of the personal representative. This window is shockingly short.
- Creditor claims: Creditors generally must file within the later of three months after the first publication of notice to creditors or 30 days after being served, under Section 733.702.
- Elective share: A surviving spouse must make the election within six months of being served with the notice of administration, or within two years of death, whichever comes first (Section 732.2135).
Because these clocks start running when documents are served, an heir who ignores a stack of legal papers can forfeit rights without ever appearing in court. If you’ve received any notice from a probate proceeding, the time to speak with counsel is now—not after the deadline passes.
Strategies for Resolving Heir Disputes
Litigation isn’t always the answer, and a good probate lawyer knows when to fight and when to deal. Family settlement agreements, authorized under Section 733.815, let heirs privately rearrange their distributions by mutual consent—a powerful tool when everyone would rather preserve the family home than liquidate it in a partition action. Mediation, as noted, resolves the overwhelming majority of cases. And sometimes the right move is simply a clear accounting that puts suspicions to rest.
That said, when a fiduciary is genuinely looting an estate or a meritless will has been propped up by undue influence, aggressive litigation is the only way to protect an heir’s rights. The judgment about which path to take should come from an attorney who has actually tried these cases in the local courts.
Our firm handles contested estates throughout Miami-Dade and South Florida; you can review our for the full scope of what we do. If you’re facing a dispute right now, reach out for a consultation before a deadline forecloses your options.
Frequently Asked Questions
The questions below address the issues Miami families ask most often when an estate turns contentious. Every situation is fact-specific, so treat these as general guidance rather than legal advice for your case.
Frequently Asked Questions
Can heirs fight over an estate when there is no will in Florida?
Yes. In fact, intestate estates often produce more conflict because there is no will to express the decedent’s wishes. Heirs may dispute who serves as personal representative, how assets are valued and divided under Florida’s intestacy statutes (Sections 732.102 and 732.103), whether someone qualifies as an heir, and whether the personal representative is fulfilling their fiduciary duties. These matters are resolved in the probate division of the circuit court.
How long do I have to contest a will or object in a Florida probate case?
The deadlines are short. Under Florida Statutes Section 733.212, an interested person served with a notice of administration generally has only three months to object to the will’s validity, the venue, or the personal representative’s qualifications. Other clocks—creditor claims, the spousal elective share—run on their own timelines. Because these periods begin when you are served, you should consult a probate attorney as soon as you receive any notice.
What is the most common reason wills are challenged in Florida?
Undue influence is among the most frequently litigated grounds. Florida courts evaluate factors from cases like In re Estate of Carpenter—such as whether the alleged influencer had a confidential relationship with the decedent, was present at the will’s execution, or helped arrange the witnesses. Other grounds include lack of testamentary capacity, fraud, duress, and improper execution under Section 732.502.
Can I remove a personal representative who is mishandling the estate?
Yes. Under Sections 733.504 and 733.609 of the Florida Statutes, interested persons can petition the court to remove a personal representative for breaches of fiduciary duty—such as self-dealing, commingling funds, failing to account, or wasting estate assets—and may seek to surcharge them for resulting losses. Demanding a formal accounting is often the first step in exposing mismanagement.
Do most Florida estate disputes go to trial?
No. Florida courts routinely order probate disputes to mediation, and the large majority settle there or through family settlement agreements authorized by Section 733.815. Trials do happen—usually before a judge in the probate division rather than a jury—when mediation fails or when serious misconduct is at issue. An experienced attorney can advise whether settlement or litigation best protects your interests.
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For more on our Florida practice, see our overview of probate in Palm Beach. Morgan Legal Group's affiliated New York office also handles .
