By: Barry E. Haimo, Esq.
July 27, 2017 (slightly modified April 21, 2018)
It is never easy dealing with the loss of a loved one. However, there will come a point when decisions need to be made about the possessions that they have left behind. This includes real property they owned as well as other monetary assets.
If there was no will, Florida’s laws of descent and distribution often play an integral part in determining how the property is to be shared among the family members who are still alive.
What Is Descent and Distribution?
The terms “descent” and “distribution” are quite simple. Descent determines the heirs of the deceased while distribution refers to how the property is shared. If your deceased relative did not leave a will, these two terms will become very critical in determining what happens to the property that was left behind.
The laws in Florida regarding the ownership of property are quite protective. If someone dies without a will, the laws of descent and distribution will determine who the rightful heirs are and how the property should be distributed.
Persons who are generally eligible for receiving property when a will is not created include spouses, children, siblings, and other family members. Of course, spouses and children often get special consideration.
How Will Property Be Distributed?
Property distribution can be simple, but often it gets quite complicated. The first thing that has to be done is determine what property is eligible for distribution. This will be done by the courts.
Homestead property tends to be distributed to the widow/widower and minor children. If not, the adult children are usually next in line. In some cases, it may not be as clear-cut as this, but this is the general order that you should expect.
Other property and assets that were owned by the deceased is usually distributed after payments such as debts and taxes have been completed. There are many factors that will affect this distribution. Here are a few, starting with whether or not there is a validly executed last will and testament. Barring any challenges, if there is a validly executed last will and testament, the property will be devised pursuant to that document. If a validly executed last will and testament cannot be found or does not exist, then the property will be devised and distributed pursuant to the laws of intestate succession.
Surviving Spouse’s Intestate Share (see Florida Statute 732.102). This does NOT address elective share rights.
- Typically, the surviving spouse will inherit the estate if there are no descendants of the deceased or there are descendants but they are also descendants of the surviving spouse.
- If there are descendants of the deceased that are not descendants of the surviving spouse, then the spouse will share the estate equally with such descendants.
- If there are descendants of the deceased all of whom are descendants of the surviving spouse, and the surviving spouse has other descendants who are not descendants of the deceased, then the surviving spouse will inherit one-half of the estate.
- The surviving spouse’s rights to inherit may be limited if not eliminated by a prenuptial or post-nuptial agreement.
Anything not passing to the surviving spouse will pass according to Florida’s laws of intestate succession. see Florida Statute 732.103. The estate passes to the following people in order:
- half to paternal grandparents, half to maternal grandparents
- there are more levels of finding family before ultimately going to the state (called “escheat”)
There are some assets that are not able to go through a will, so they will not be affected by the descent and distribution laws. These assets are automatically passed on to the beneficiaries, with or without a will.
Some of these are:
- Proceeds from life insurance
- Bank accounts that are payable on death
- Property that is owned in joint tenancy
If you are in a predicament where you have a loved one that died without a will and you need an attorney, reach out to us at Haimo Law.
Barry E. Haimo, Esq.
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