Answer by Phillip B. Rarick, Miami Probate Attorney
Everyone has a will, whether you know it or not. If you fail to plan for this certainty, the state of Florida has a will for you: it is called intestate succession.
A common question we get from relatives of family members who die without a will is who gets what. The answer depends on Florida’s laws of intestate succession. Here are the most common situations:
1. Decedent was married, but had no descendants (children or grandchildren): Surviving spouse gets 100%. F.S. 732.102(1)
2. Decedent was married, but had living descendants who are also descendants of the surviving spouse. Prior to October 1, 2011, the surviving spouse received the first $60,000 of the estate and 50% of the balance; the remaining 50% is shared by the descendants per stirpes. (Per Stirpes means the estate is divided at each generation, with the children of any deceased parent taking the share their parent would have received.) However, on October 1, 2011, a major change in the law became effective for this situation. Now, under the new law, the surviving spouse receives 100%. F.S. 732.102(2)
3. Decedent was married, but had living descendants, who are also descendants of the surviving spouse; however surviving spouse has descendants who are not descendants of the decedent (the step-children of decedent). Example: Decedent is survived by his wife, his children, and step-children who are the children of his wife. Surviving spouse receives 50%; balance to the descendants of the decedent, per stirpes. Step-children receive nothing. F.S. 732.102(3) and F.S. 732.102(4)
3. Decedent was not married, but had living descendants. The descendants get 100% per stirpes. This means the estate is divided at each generation, with the children of any deceased parent taking the share their parent would have received. F.S. 732.103(1)
4. Decedent was not married and had no living descendants. First, to decedent’s father and mother equally, or the survivor of them. Second, if none of the forgoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters, per stirpes. F.S. 732.103.
Take Away Points
1. Don’t let the state of Florida draft your will – it may result in unintended and unfair consequences.
2. Don’t disinherit your children – unless you intend to do so. If you are married, living in Florida with children and no will, your children may receive nothing.
3. Our office can help if you have a family member who died anywhere in the state of Florida without a will; we having been providing Miami probate services for over 20 years. We offer probate services statewide in all Florida counties.
4. Plan ahead, Now – you know the old saying: there are the only few certainties in life – death and taxes. If you have a family member who does not have a will or trust to avoid probate and/or minimize taxes, you need to try to convince that person to see a Florida estate planning attorney. Rarick & Bowden Gold, P.A. are experienced Miami estate planning attorneys who have been assisting Florida residents prepare estate plans for over 20 years.
We welcome the opportunity to assist you or your family members. To schedule an appointment, call Miami probate attorneys and Miami estate planning attorneys Phil Rarick or Jay Beskin at (305) 556-5209 or email info@raricklaw.com.