Probate Without a Will in Florida: How Intestate Succession Works

When a Florida resident dies without a valid will, their estate passes through intestate succession—a default inheritance order set by the Florida Probate Code (Chapters 731–735 of the Florida Statutes). The law, not the deceased, decides who receives the assets, and it follows a fixed hierarchy that starts with the surviving spouse and children. Probate is still required to transfer those assets, but instead of naming beneficiaries, the court applies the statutory formula.

People assume that dying “without a will” means the state takes everything. That almost never happens. Florida law has a detailed plan ready for anyone who never made one—it just may not be the plan that family would have chosen. In more than two decades of probate work across South Florida, I’ve watched intestacy split families that thought they understood who should get what. Here’s how it actually works.

What “intestate” means in Florida probate

A person who dies intestate died without a legally valid will. A person who dies testate left a will the court can admit to probate. The distinction matters because it changes everything about who inherits and, often, who serves as the person in charge of the estate.

Intestacy can be total or partial. Total intestacy means there’s no will at all. Partial intestacy is sneakier: there’s a will, but it doesn’t dispose of every asset—maybe it names a beneficiary who died first, or it covers a house but says nothing about a brokerage account opened years later. Whatever the will misses falls back into the intestate rules.

One thing intestacy does not change: probate is still necessary for assets titled in the deceased’s sole name. The estate still has to be opened in the circuit court of the county where the decedent lived, a personal representative still has to be appointed, creditors still have to be notified, and the court still supervises the distribution. The absence of a will doesn’t shortcut probate—if anything, it adds friction.

Florida’s intestate succession order under § 732.101–732.103

Florida Statutes § 732.101 establishes the baseline: any part of the estate not effectively disposed of by will passes to the decedent’s heirs as set out in the statute. Sections 732.102 and 732.103 then lay out the order. Here is how the shares fall:

• Surviving spouse, no descendants: the spouse inherits the entire intestate estate (§ 732.102).
• Surviving spouse and descendants who are all shared children of the couple, and the spouse has no other children: the spouse takes the entire estate.
• Surviving spouse plus descendants who are not all the couple’s shared children (a blended family), or where the spouse has at least one descendant who is not the decedent’s: the spouse receives one-half, and the descendants split the other half.
• No surviving spouse: the estate passes to the decedent’s descendants (children, then grandchildren, and so on) under § 732.103.
• No spouse and no descendants: the estate goes to the decedent’s parents, then to siblings and their descendants, then to grandparents and their lines, following the statutory tree outward.

When property passes to descendants in Florida, it passes per stirpes—by representation. If one of three children predeceased the parent but left two kids of their own, those grandchildren split their late parent’s one-third share between them rather than each taking a full child’s portion.

Escheat: when the state really does inherit

If the search for heirs comes up completely empty—no spouse, no descendants, no parents, no collateral relatives traceable under § 732.103—the estate escheats to the State of Florida under § 732.107. In practice this is rare. The statutory tree reaches grandparents, aunts, uncles, and cousins, so a genuine dead end is unusual. But it’s why a thorough heir search matters.

Who counts as a child or heir—and why it gets contested

The clean chart above hides the most litigated questions in intestate estates: who qualifies as an heir. A few recurring issues:

• Adopted children inherit from their adoptive family exactly as biological children do, and generally not from their biological family (§ 732.108).
• Children born outside marriage can inherit from the father if paternity is established—by the parents’ later marriage, by the father’s written acknowledgment, or by adjudication—under § 732.108(2).
• Stepchildren and foster children who were never legally adopted do not inherit through intestacy. This surprises grieving families constantly.
• Half-blood relatives inherit half as much as whole-blood relatives of the same degree under § 732.105.
• Posthumous heirs—a child conceived before death but born after—inherit as if born during the decedent’s life (§ 732.106).

There’s also the 120-hour rule. Under Florida’s survivorship statute (§ 732.601), an heir must survive the decedent by at least 120 hours to inherit. If a husband and wife die within five days of each other in the same accident, each is treated as having predeceased the other for distribution purposes—a detail that completely reshapes who ultimately receives the property.

Spousal protections that override the intestate math

A surviving spouse in Florida has rights that sit on top of—and sometimes ahead of—the intestate shares. These often catch other heirs off guard:

• Homestead: Florida’s constitutional homestead protections (Art. X, § 4) and § 732.401 control the primary residence. If the decedent is survived by a spouse and descendants, the spouse may take a life estate (or elect a one-half interest as tenant in common) regardless of the general intestate split. Homestead does not pass like ordinary probate property.
• Exempt property: Under § 732.402, the spouse or children are entitled to certain household furnishings, two vehicles, and other items free of creditor claims.
• Family allowance: Section 732.403 allows the court to award up to $18,000 to support the spouse and dependents during administration.
• Elective share: Section 732.201 gives a surviving spouse a 30% claim against the “elective estate”—though this matters more when there’s a will that shortchanges the spouse.

The takeaway: a surviving spouse rarely walks away with simply “half.” Between homestead, exempt property, and the family allowance, the practical recovery is often larger than the bare § 732.102 fraction suggests.

The probate process when there’s no will

Opening an intestate estate follows the same procedural track as any formal administration, with a few wrinkles. The basic sequence:

1. Determine the right kind of administration. Small estates under $75,000 (or where the decedent died more than two years ago) may qualify for summary administration under § 735.201. Larger or more complex estates require formal administration.
2. Petition the court and appoint a personal representative. With no will naming an executor, § 733.301 sets the priority: the surviving spouse first, then the person selected by a majority of the heirs, then the heir nearest in degree. This is a frequent flashpoint—siblings who can’t agree on who serves.
3. Identify and notify heirs and creditors. The representative must serve known creditors and publish a notice to creditors (§ 733.2121), opening a claims period.
4. Inventory and value the assets. Only probate assets count—jointly titled property, payable-on-death accounts, and life insurance with named beneficiaries pass outside probate.
5. Pay valid debts, taxes, and administration costs.
6. Distribute the remainder to the heirs according to the intestate shares, then close the estate.

Because Florida requires an attorney to represent the personal representative in a formal administration (with narrow exceptions), most families work with probate counsel from the start. For families navigating a Florida estate, our firm’s handles administration from petition through final distribution.

Why intestate estates breed disputes

Our editorial focus here is family conflict, and intestacy is fertile ground for it. Without a will to express the decedent’s wishes, every gap becomes an argument:

• Who serves as personal representative. When heirs split evenly, the court has to break the tie, and the loser often resents the winner controlling the checkbook.
• Heir status fights. A claimed nonmarital child, a disputed common-law marriage from another state, or an estranged spouse who never finalized a divorce can each blow up the distribution chart.
• Homestead characterization. Whether a property qualifies as protected homestead changes who gets it and whether creditors can reach it—litigated constantly.
• Allegations a will existed. Sometimes a family member insists the decedent did make a will and someone is hiding or destroyed it. That’s a will contest layered on top of an intestacy.

These are the cases where probate litigation counsel earns its keep. We handle contested administrations and inheritance disputes on the Florida side, and our New York colleagues litigate parallel matters there—see their work on and the mechanics of a for clients with assets in both states.

How to avoid intestacy altogether

Everything above is the price of not planning. A properly executed Florida will—or better, a revocable trust—lets you name your own beneficiaries, choose your own personal representative, and keep the statute from imposing a result you’d never have chosen. Beneficiary designations, payable-on-death accounts, and proper titling can move many assets outside probate entirely.

If you’ve lost a family member who left no will, or you’re worried an estate is heading toward a fight, get advice early—before the court appoints someone and the claims clock starts running. You can reach our South Florida probate team to talk through your options, or read more about the broader Florida probate process.

This article is general information about Florida law and not legal advice. Intestate succession outcomes turn on specific facts; consult a licensed Florida attorney about your situation.

Frequently Asked Questions

Who inherits if I die without a will in Florida?

Florida’s intestate succession statutes (§ 732.102–732.103) decide. A surviving spouse takes the entire estate if there are no descendants, or if all descendants are shared children of the couple. In a blended family, the spouse takes half and the descendants split the other half. With no spouse, the estate passes to descendants, then to parents, siblings, and more distant relatives.

Does the State of Florida take my property if I have no will?

Almost never. The state only inherits—called escheat under § 732.107—if no spouse, descendants, parents, or any traceable collateral relatives can be found. Because the statutory tree reaches grandparents, aunts, uncles, and cousins, a true dead end is rare.

Is probate still required if someone dies without a will in Florida?

Yes. Solely owned assets must pass through probate whether or not there is a will. Without a will, the court appoints a personal representative under § 733.301 and distributes assets according to the intestate shares. Small estates may qualify for summary administration under § 735.201.

Do stepchildren inherit under Florida intestacy?

No. Stepchildren and foster children who were never legally adopted do not inherit through intestate succession. Only adopted and biological descendants—and, for a father, children whose paternity is legally established—qualify as heirs under § 732.108.

What protections does a surviving spouse have beyond the intestate share?

A Florida surviving spouse may receive constitutional homestead rights (§ 732.401), exempt property such as vehicles and furnishings (§ 732.402), and a family allowance up to $18,000 (§ 732.403), all on top of the basic intestate share—so the practical recovery is often larger than a simple fraction.