Dying Without a Will in Florida
How Florida's intestate succession laws decide who inherits, why the homestead rules change everything, and what your family faces in probate when there is no will.
_This article is general information, not legal advice. Estate law is highly fact-specific, and Florida's homestead and probate rules are unusual even among US states. For guidance on your own situation, consult a licensed Florida attorney._
When someone dies without a valid will in Florida, they are said to die "intestate." At that point, the wishes you carried in your head no longer matter. A set of default rules in the Florida Probate Code (Chapter 732 of the Florida Statutes) steps in and decides who inherits, in what shares, and in what order. Those rules are not a guess about what you would have wanted. They are a rigid formula, and for many families the result is a surprise.
This matters more than most people assume. According to Caring.com's 2024 Wills and Estate Planning Study, conducted with YouGov and widely cited by outlets including Forbes, only about 32 percent of American adults had a will, meaning roughly two in three of us would die under the intestacy rules of our state. Florida, with one of the largest retiree populations in the country, is where a great many of those estates land.
Florida is not a community property state
A common myth, especially among people who moved to Florida from states like California or Texas, is that a surviving spouse automatically owns half of everything. Florida is a common-law (separate property) state, not a community property state. Marriage alone does not turn one spouse's assets into joint property. Instead, who inherits is governed by the intestate share rules in sections 732.101 through 732.103 of the Florida Statutes.
Who inherits under Florida's intestate rules
The surviving spouse's share depends entirely on whether there are descendants (children, grandchildren and so on), and crucially, whose descendants they are. Under section 732.102:
Spouse, no descendants: the surviving spouse inherits the entire intestate estate.
Spouse plus descendants who are all shared by both spouses (and the spouse has no other descendants): the surviving spouse inherits the entire intestate estate.
Spouse plus one or more descendants from another relationship: the estate is split, with the surviving spouse taking one-half and the descendants sharing the other half.
That third scenario is the one that catches blended families. A second spouse and the children of a first marriage can end up as co-owners of the same estate, which is rarely what anyone pictured. (Florida amended section 732.102 in 2024, and some shared-descendant situations now involve a fixed dollar amount to the spouse plus a share of the balance. Because the exact mechanics turn on the precise family makeup, confirm the current figures with a Florida attorney.)
When there is no surviving spouse, section 732.103 sends the estate down a fixed ladder of kin:
to the decedent's descendants;
if none, to the decedent's parents equally, or the survivor of them;
if none, to the decedent's brothers and sisters and the descendants of any who have died;
and only if none of those exist, on to grandparents, then aunts, uncles and cousins, split between the paternal and maternal sides.
If the ladder runs out entirely with no locatable heirs, the property can "escheat" to the State of Florida. That is rare, but it is the legal endpoint.
Florida homestead: the rule that overrides your will
No discussion of Florida inheritance is complete without the homestead, and this is where Florida differs sharply from almost everywhere else. Homestead protection is written into the Florida Constitution (Article X, Section 4). It does two big things at death. First, it shields the home from most creditors. Second, and more surprising, it restricts how the homestead can be left.
If the owner is survived by a spouse or a minor child, the constitution sharply limits how the homestead may be devised. A homestead generally cannot be left to anyone other than the spouse if there is a minor child, and even spousal gifts are constrained. The practical effect is that the homestead often passes outside the ordinary intestacy shares described above, on its own special track.
When a homestead is not validly devised, section 732.401 of the Florida Statutes controls. If the decedent is survived by a spouse and one or more descendants, the surviving spouse takes a life estate in the home, with the remainder passing to the descendants. Recognising that a life estate can trap a spouse with maintenance, taxes and insurance on a house they cannot sell alone, Florida gives the spouse a choice. Under section 732.401, the surviving spouse may instead elect to take an undivided one-half interest as a tenant in common, with the descendants taking the other half. That election has a strict deadline (it must be made within roughly six months of death and recorded in the county land records), which is one more reason families end up needing counsel quickly.
The elective share protects a spouse who is cut out
Florida also makes it very hard to disinherit a spouse, even with a will. Under section 732.201 and the sections that follow, a surviving spouse may claim an "elective share" of 30 percent of the decedent's elective estate. The elective estate is broad: it reaches beyond probate assets to certain trusts, jointly held property, payable-on-death accounts and some transfers made before death. The point is to stop one spouse from quietly routing everything around the other. The surviving spouse must affirmatively elect this share within statutory deadlines, generally six months from notice of administration or two years from death.
Florida does not accept handwritten or oral wills
Many people assume a handwritten note left in a drawer will do the job. In Florida, it generally will not. Under section 732.502, a valid Florida will must be in writing, signed by the testator, and witnessed by two people who sign in the required manner. Florida does not recognise holographic (unwitnessed handwritten) wills or nuncupative (oral) wills. Strikingly, even a holographic will that was perfectly valid in the state where it was written is not accepted in Florida. A document you believed was your will can therefore fail entirely, dropping your estate straight into intestacy.
What probate looks like with no will
Dying intestate does not avoid probate; it usually means probate without a roadmap. Florida offers a few tracks, set out in Chapter 735 and Chapter 733 of the Florida Statutes.
Formal administration is the full, court-supervised process. It is required for larger estates and typically requires a Florida attorney.
Summary administration is the streamlined option under section 735.201. It is available when the value of the estate subject to administration does not exceed 75,000 dollars, or when the decedent has been dead for more than two years. Importantly, exempt homestead property is generally not counted toward that 75,000 dollar ceiling, which is why even modest-looking estates sometimes still qualify.
Disposition without administration under section 735.301 is the smallest track of all, for cases where the only assets are exempt property and amounts that do not exceed final expenses, allowing reimbursement without opening a formal estate.
Even the streamlined paths require court filings, proof of who the heirs are, and patience. As the Miami Herald, Tampa Bay Times and Orlando Sentinel have each reported over the years in coverage of contested and high-profile Florida estates, the absence of clear instructions is what turns a grieving family into adversaries. Probate filings remain heavy across the state's largest circuits, with Florida probate practitioners noting thousands of new probate matters per judge each year in counties like Miami-Dade, Broward and Palm Beach.
Why your wishes deserve more than a default formula
Intestacy gives your family a transfer of assets. It cannot give them the things that actually carry your life forward: your reasoning, your values, the stories behind the decisions, the voice your grandchildren would recognise. A statute can split a house. It cannot explain why the house mattered.
That gap is the quiet case for putting your wishes in order while you can, and for preserving the parts of yourself that no probate code reaches. Afterlife AI™ helps you build a Persona from your own memories and conversations and, for those who choose it, a consent-based preservation of your own voice that stays governed by you, with consent set during your lifetime and locked at Executor Lock™. None of that replaces a properly drafted Florida will or the advice of a Florida attorney. It sits alongside your legal planning, so the people you leave behind inherit not just what you owned, but something of who you were.
The legal documents protect your estate. Make them, with a Florida lawyer. Then decide what else of yourself is worth keeping.
Frequently asked questions
Sources
Florida Statutes Chapter 732, Probate Code: Intestate Succession and Wills
Florida Statutes section 732.102, Spouse's share of intestate estate
Florida Statutes section 732.201, Elective share of surviving spouse
Florida Statutes Chapter 735, Probate Code: Small Estates (Summary Administration)
Intestate Succession in Florida: Who Inherits When There's No Will?