Intestate Succession

Question 1

Intestacy

Answer 1

Refers to the distribution of assets upon death, when there is no will or trust.

Question 2

Per stirpes

Answer 2

When assets are distributed to descendants, they are split evenly at the first generational level.

EX: A and B each receive 50% of W’s estate.

Question 3

Strict Per Stirpes

Answer 3

Florida follows the minority position on the distribution to descendants.

Assets are distributed under strict per stirpes, meaning at the first generational, regardless of whether there are any living takers.

For example, if A + B are dead, and A has C, and B has, D and E, C takes 50% upon W’s death, and D & E each take 25%.

Question 4

Intestate Share of Surviving Spouse: No Descendants

Answer 4

Surviving spouse takes the entire estate.

Question 5

Intestate Share of Surviving Spouse: Only Marital Descendants

Answer 5

Surviving spouse takes the entire estate.

Question 6

Intestate Share of Surviving Spouse: Dead Person has Children Outside the Marriage

Answer 6

Surviving spouse takes 1/2 and the descendants of the decedent take 1/2 per stirpes.

This is true, irrespective of whether there are also marital descendants.

Question 7

Intestate Share of Surviving Spouse: Spouse has Children Outside the Marriage, Dead Person has Marital Children Only

Answer 7

Surviving spouse takes 1/2 and the descendants of the decedent take 1/2 per stirpes.

Question 8

Intestate Share of Surviving Spouse: Spouse has kids outside the marriage, decedent has not descendants

Answer 8

Surviving spouse takes the entire estate.

Question 9

Intestate Share of Heirs (Order of Hiearachy)

Answer 9

1. Surviving Spouse
2. Descendants, per stirpes
3. Parents
4. Brothers and sisters and their descendants, per stirpes
5. Grandparents and their descendants, per stirpes (1/2 to maternal, 1/2 paternal)
6. Kindred of the last deceased spouse
7. Escheat to the state

Question 10

Adopted children

Answer 10

Adopted children are treated the same as natural children of the adopting parents. Adopted children DO NOT inherit from their natural families.

Exception: Children adopted AFTER a natural parent dies can still inherit from the natural parent’s family.

Question 11

Non-marital children

Answer 11

Children born out of wedlock are heirs of the mother but not of the father.

Exceptions:
1. A natural parent participated in the marriage ceremony (before or after birth), even if that marriage turned out to be void; or

2. The father acknowledged paternity in writing; or
3. Paternity was established by court adjudication (e.g. paternity test)

Question 12

Half-Bloods

Answer 12

Half-bloods take half as much as whole bloods.

Exception: If ALL siblings are half-bloods, then the siblings take whole shares.

Question 13

Probate Estate

Answer 13

The estate that could have been controlled by a will had the decedent executed one. It does not include:

(1) property passing by right of survivorship
(2) property passing by contract
(3) bank accounts or securities titled in “payable on death” or “transfer on death” form
(4) property held in trust; or
(5) property over which the decedent had a power of appointment.

Question 14

Disclaimer

Answer 14

Under the Florida disclaimer statute, a disclaimer may occur at any time prior to acceptance of the interest. But, to be effective for tax purposes, the disclaimer must occur within NINE months after decedent’s death.

For minor beneficiaries, the disclaimer must be made within 9 months of attaining 21.