Intestate Succession

Question 1

What is the statutory distribution scheme? List the order of who takes by intestacy if surviving.

Answer 1

1. Surviving spouse
2. Descendants, per stirpes
3. Parents or surviving parent
4. Siblings of the deceased and their descendants
5. Grandparents (1/2 to paternal and 1/2 to maternal; if not, all to surviving grandparents), or if none, descendants of decedent’s grandparents
6. If there is no one else, the estate can go to the kindred of a predeceased spouse. The spouse is then treated with the same line of succession
7. If there is no one else, the property escheats and is taken by default for the state of Florida

Question 2

What distribution scheme does FL follow?

Answer 2

Florida follows a strict per stirpes scheme of distribution.

Question 3

When does the Surviving Spouse (“SS”) take the entire estate of the Deceased Spouse by intestacy?

Answer 3

SS takes the entire estate of deceased spouse if:

1. The decedent is also survived by descendants, all of whom are also descendants of the SS, and the spouse does not have any other descendants; or
2. The decedent leaves no surviving descendants.

Question 4

When does the Surviving Spouse (“SS”) take only half of the estate of the Deceased Spouse by intestacy?

Answer 4

If the decedent is survived by descendants and either the decedent or the SS has descendants who are not the descendants of the other. The decedent’s descendants get the other 1/2.

Question 5

Adopted children

Answer 5

treated the same as natural children of the adopting parents.

There is no inheritance in either direction between adopted kids and their natural parents, except where an adopting parent marries one of the natural parents or the child is adopted by a close relative.

Any parent, natural or adoptive, is barred from inheriting from a child if that parent’s parental rights were terminated.

Question 6

Stepchildren and Foster Children

Answer 6

Generally no inheritance rights unless adopted by the stepparent or foster parent. However, the doctrine of adoption by estoppel applies when legal custody of a child is gained under an (unfulfilled) agreement to adopt.

Question 7

Posthumous Children

Answer 7

In Florida, heirs conceived before the decedent’s death but born thereafter inherit intestate property as if they had been born in the decedent’s lifetime.

Question 8

Nonmarital children

Answer 8

Children born out of wedlock are heirs of the mother but not of the father, unless he marries the mother, is adjudicated the father before or after his death, or acknowledges paternity in writing.

Question 9

Half bloods

Answer 9

Brothers and sisters who have only 1 common parent. For purposes of inheritance by collateral kin, Florida provides that half bloods take half as much as whole bloods, except where all collateral kin are half bloods.

Question 10

Disinheritance

Answer 10

The only way to disinherit an heir is to otherwise dispose of the entire estate. Any undisposed property will pass via the intestacy statute regardless of the decedent’s express wishes.