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

Probate without a will in Florida means the estate is distributed under the state’s intestate succession statutes (Chapter 732, Florida Statutes) rather than according to the deceased person’s written wishes. When someone dies “intestate”—that is, without a valid will—Florida law supplies a default plan that names the heirs and fixes each heir’s share. The court still opens a probate case, still appoints someone to administer the estate, and still oversees the transfer of assets; the only difference is that a statute, not a will, decides who gets what.

If you have been asked to serve as the personal representative of a Florida estate with no will, or you suspect you are an heir, understanding how intestate succession works is the difference between a clean administration and months of avoidable conflict. Below is a working explanation written from the trenches of South Florida probate practice.

What “intestate” actually means in Florida probate

A person dies intestate when they leave no will at all, or when the will they left is invalid—improperly witnessed, revoked, or successfully challenged. Partial intestacy is also common: someone writes a will that disposes of part of their property but forgets a bank account, a brokerage account, or a parcel of land. The covered assets pass under the will; the leftover assets pass by intestate succession.

One point trips up nearly everyone: not every asset goes through probate in the first place. Jointly titled real estate with rights of survivorship, accounts with a named beneficiary, “payable on death” and “transfer on death” designations, and life insurance proceeds generally pass outside probate and outside the intestacy rules entirely. Intestate succession governs only the probate estate—assets titled in the decedent’s sole name with no surviving co-owner or beneficiary. A surprising number of “estates” turn out to have almost nothing left to probate once these non-probate transfers are accounted for.

Who inherits when there is no will: the order of heirs

Florida’s distribution scheme follows a strict hierarchy. The estate does not get split among everyone who shows up; it flows down a defined ladder, and once a tier inherits, the lower tiers receive nothing.

The surviving spouse’s share (§ 732.102)

The spouse comes first, and the size of the spousal share depends entirely on who else survived the decedent:

• Spouse, no descendants: the surviving spouse takes the entire intestate estate.
• Spouse and descendants, all shared with the spouse: when every surviving child or grandchild of the decedent is also a descendant of the surviving spouse, the spouse takes the entire intestate estate. (This reflects the law as amended; older guidance describing a “first $60,000 plus half” split no longer applies in this scenario.)
• Spouse plus descendants who are not the spouse’s descendants: the surviving spouse takes one-half of the intestate estate, and the decedent’s descendants share the other half. This is the classic blended-family result.
• Surviving spouse who has descendants from another relationship, even if the decedent’s children are all shared: the spouse still takes only one-half. The statute looks at both sides.

This last wrinkle catches second marriages constantly. If both spouses have children from prior relationships, the surviving spouse rarely inherits everything—a result that almost never matches what the couple assumed would happen.

Descendants and more distant relatives (§ 732.103)

Whatever does not pass to a surviving spouse—or the entire estate if there is no spouse—descends in this order under section 732.103:

1. To the decedent’s descendants (children, then grandchildren, and so on).
2. If no descendants, to the decedent’s father and mother equally, or to the survivor of them.
3. If no parents, to the decedent’s brothers and sisters and the descendants of any deceased siblings.
4. If none of the above, the estate is split between the paternal and maternal kindred—grandparents, aunts, uncles, cousins—half to each side.
5. If only one side has surviving kindred, that side takes the whole estate.

The statute reaches quite far down the family tree before giving up. Genuine “no heirs at all” cases are rare, but when they happen, the estate escheats to the State of Florida under section 732.107. Escheat is the legal last resort, not a routine outcome.

How shares are divided: per stirpes (§ 732.104)

Florida distributes intestate property per stirpes, which is Latin for “by the branch.” Section 732.104 applies this method to both lineal descendants and collateral heirs. Here is how it works in practice.

Imagine a widow dies intestate with three children, but one child predeceased her, leaving two children of his own (her grandchildren). The estate splits into three equal branches at the children’s level. The two living children each take their one-third. The deceased child’s one-third does not disappear and does not get redistributed to his siblings—it drops down to his branch, so his two children split that one-third, taking one-sixth each. Each branch of the family is treated equally, regardless of how many people stand in it.

Per stirpes is intuitive once you see it, but it produces results that surprise families who assume “everyone splits it evenly.” Grandchildren inherit only through a deceased parent’s branch, never alongside their living aunts and uncles.

The homestead: Florida’s most misunderstood intestacy issue

No discussion of dying without a will in Florida is complete without the homestead. The constitutionally protected homestead does not pass like ordinary probate property, and section 732.401 governs its descent.

If the decedent is survived by a spouse and one or more descendants, the surviving spouse receives a life estate in the homestead, with a vested remainder to the descendants in being at the decedent’s death, per stirpes. In other words, the spouse may live there for life, but the children own the future interest.

Because a life estate carries real burdens—the life tenant typically shoulders taxes, insurance, and upkeep—Florida law (amended in 2010) gives the surviving spouse an alternative. Within a defined window, the spouse may elect to take an undivided one-half interest as a tenant in common instead, with the descendants taking the other half. The election must be made by filing and recording a proper notice in the county where the homestead sits. Miss the deadline and the default life estate stands. For a surviving spouse in Miami-Dade, Broward, or Palm Beach County, this single decision can reshape the entire inheritance, and it should never be made without legal advice.

The personal representative’s role in an intestate estate

With no will, there is no nominated executor—so Florida law sets the order of preference for who may serve as personal representative. The surviving spouse has first priority, followed by the heir selected by a majority of those entitled to the estate, then the heir nearest in degree. The appointee must be qualified to serve (Florida imposes residency and felony restrictions) and is issued Letters of Administration by the court.

From there, the job mirrors any other probate administration: identify and inventory assets, give notice to creditors, pay valid debts and expenses, file the necessary accountings, and distribute what remains to the statutory heirs. The catch is that in an intestate estate the personal representative must distribute strictly by statute. There is no document expressing the decedent’s intent to fall back on, which is exactly why disputes among heirs are more frequent here. Many of the —heir disagreements, hard-to-value assets, missing or unknown relatives—land squarely on the personal representative’s shoulders when no will exists to guide the way.

Common ways intestacy goes sideways

• Unmarried partners inherit nothing. Florida intestacy recognizes legal marriage, not long-term cohabitation. A devoted partner of twenty years is not an heir.
• Stepchildren are not heirs unless legally adopted. Biological and adopted descendants inherit; stepchildren do not.
• Half-siblings inherit half-shares. Under section 732.105, when collateral heirs are involved, a sibling of the half blood takes half as much as a sibling of the whole blood.
• The 120-hour survival rule. Under section 732.601, an heir who does not survive the decedent by at least 120 hours is treated as having predeceased—important in accidents involving multiple family members.
• Disinheritance happens by accident. People who would never have left a child or a charity out of their plan do exactly that by dying without a will, because the statute has no idea what they wanted.

That last point is the real lesson. Intestate succession is a one-size plan imposed on infinitely varied families, and it frequently produces outcomes the decedent would have rejected. A signed will, or even a basic estate plan documented at our wills and estate planning page, removes the guesswork. If you are navigating an estate that is already in probate, our Florida probate guide walks through the administration steps in detail.

When to bring in a Florida probate attorney

Intestate administration is rarely a do-it-yourself project. Heir identification, the homestead election, creditor claims, and disputes among beneficiaries all carry deadlines and traps that can expose a personal representative to personal liability. When inheritance is contested—whether someone challenges who the heirs are or, in a will-based estate, attacks the document itself—the stakes climb fast; the mechanics of illustrate just how technical these fights become. Morgan Legal Group handles probate on both coasts, and their Florida probate practice can guide a personal representative through an intestate estate from petition to final distribution.

If you have been named to administer an estate with no will, or you believe you are entitled to inherit, do not guess at the statute. Contact our office for a focused review of who the heirs are and what each is owed under Florida law.

Frequently Asked Questions

Who inherits if someone dies without a will in Florida?

Under Chapter 732, the surviving spouse inherits first, with the share depending on whether there are descendants and whether those descendants are shared with the spouse. If there is no spouse, the estate passes to the decedent’s descendants, then parents, then siblings, and finally to more distant kindred. Only when no qualifying relatives exist does the estate escheat to the State of Florida.

Does my spouse automatically get everything if I die without a will in Florida?

Not always. A surviving spouse takes the entire intestate estate only when there are no descendants, or when all of the decedent’s descendants are also descendants of the surviving spouse and the spouse has no other descendants. In a blended family—where either spouse has children from another relationship—the surviving spouse generally receives only one-half, with the descendants sharing the rest.

What is per stirpes distribution in Florida intestate succession?

Per stirpes, meaning ‘by the branch,’ divides the estate into equal shares at the first generation of heirs. If an heir in that generation has died, that heir’s share does not vanish or pass to their siblings; it drops down to that heir’s own descendants, who split it. Section 732.104 applies this method to both descendants and collateral heirs.

What happens to the Florida homestead when there is no will?

If the decedent leaves a spouse and descendants, section 732.401 gives the surviving spouse a life estate in the homestead, with the descendants holding a vested remainder per stirpes. Since 2010, the spouse may instead elect, within the statutory deadline, to take an undivided one-half interest as a tenant in common, with the descendants taking the other half. The election must be properly recorded in the county where the property is located.

Can an unmarried partner or stepchild inherit under Florida intestacy law?

No. Florida intestate succession recognizes legal marriage and biological or legally adopted descendants. A long-term unmarried partner is not an heir, and stepchildren do not inherit unless they were legally adopted by the decedent. The only reliable way to provide for them is through a valid will or other estate planning.