<![CDATA[intestate - Law Office of James W. Martin, P.A.]]> https://www.jamesmartinpa.com/blog/tags/intestate/ Fri, 20 Feb 2026 16:18:47 GMT en-us <![CDATA[Florida Changes Intestacy Law for Certain Spouses]]> https://www.jamesmartinpa.com/blog/florida-changes-intestacy-law-for-certain-spouses/ https://www.jamesmartinpa.com/blog/florida-changes-intestacy-law-for-certain-spouses/ Mon, 03 Jul 2017 19:44:00 GMT When a Florida resident dies without a will, the decedent is said to have died intestate, and the Florida Probate Code states who will inherit the estate. If there is a surviving spouse and no descendants, then all goes to the surviving spouse. If there are descendants and no surviving spouse, then all goes to…

]]> When a Florida resident dies without a will, the decedent is said to have died intestate, and the Florida Probate Code states who will inherit the estate. If there is a surviving spouse and no descendants, then all goes to the surviving spouse. If there are descendants and no surviving spouse, then all goes to the descendants. But what if the decedent leaves both a surviving spouse and one or more descendants?

For many decades, Florida law provided that the surviving spouse received half the estate* and the descendants shared the other half among themselves. This likely arose from public policy that both the surviving spouse and children needed assets to survive, but it also surprised many young couples. If a young father died without a will, half his estate would pass to his wife and the other half would go to a guardian for his minor children. Inheriting half the father’s assets at age 18 is probably not the best way to learn financial independence, so most parents made wills or held their assets in joint names as tenants by the entirety to avoid this result.

Along comes the 2011 Florida Legislature to the rescue. It enacted a law that amends the Florida Probate Code effective October 1, 2011 to provide that the entire estate passes to the surviving spouse if (a) the decedent died leaving a spouse and one or more descendants, (b) all of the decedent’s descendants are also the surviving spouse’s descendants, and (c) the surviving spouse has no other descendant.

It’s still a good idea for a young couple to make a will and to hold assets jointly as tenants by the entirety, but the new law will eliminate the surprise of a surviving spouse having to share assets with children when a spouse dies. It remains to be seen whether those children will be surprised to learn they get nothing.

*Actually, the law provides that, if all the decedent’s descendants are also descendants of the surviving spouse, then the spouse receives the first $60,000 before dividing the rest in half.

]]> <![CDATA[What If I Die Without a Will in Florida?]]> https://www.jamesmartinpa.com/blog/what-if-i-die-without-a-will-in-florida/ https://www.jamesmartinpa.com/blog/what-if-i-die-without-a-will-in-florida/ Tue, 24 May 2011 20:00:00 GMT When a Florida resident dies without a will, they are said to die intestate. When a Florida resident dies with a will, they are said to be testate. A will names beneficiaries who receive the estate assets after payment of expenses, taxes and claims and names a personal representative (PR) to collect the assets, pay…

]]> When a Florida resident dies without a will, they are said to die intestate. When a Florida resident dies with a will, they are said to be testate. A will names beneficiaries who receive the estate assets after payment of expenses, taxes and claims and names a personal representative (PR) to collect the assets, pay the bills, and distribute the estate. So when someone dies in Florida without a will who gets the assets and who acts as PR?

The answer is in the Florida Probate Code. If the Florida resident left a spouse and children, then they are the beneficiaries. If not, then it passes to the resident’s parents. If they are deceased, then it passes to siblings and descendants of deceased siblings.

The PR of an intestate estate is generally the spouse, but if none then the children and on down in the order of beneficiaries.

So, it’s always best to make a will while you’re alive and well so that the beneficiaries and PR are the persons you want them to be.

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