If a Florida resident dies leaving a will, his real and personal property goes to the beneficiaries named in the document. If the decedent dies intestate, or without a will, the estate is subject to Florida's intestacy statutes. These statutes determine who receives estate property based on marital and kinship ties.
Probate is the process by which the decedent's personal and real property is identified and distributed. It is conducted by the circuit court of the county in which the decedent resided. If the decedent did not have a valid will, the judge will appoint a personal representative to administer the estate. In Florida, the surviving spouse has the initial right to appointment, but if the spouse declines to serve or the decedent was unmarried, an individual or institution approved by a majority of heirs may serve. A judge makes the appointment if the heirs disagree. The personal representative must make an inventory of all real and personal property owned by the decedent and pay the decedent's debts out of the estate assets. When all affairs of the estate are settled, the remaining assets are divided among the heirs according to Florida's laws of intestate succession.
Inheritance Law for Married Decedents
If the decedent was married at the time of death but has no living descendants, the spouse receives the entire estate. If the decedent has living descendants, such as children or grandchildren, who are also the descendants of the surviving spouse, the surviving spouse receives the entire estate. If the surviving spouse has descendants who are unrelated to the decedent, or the decedent has descendants unrelated to the spouse, the spouse receives half of the estate with the other half is shared among the decedent's descendants. This includes the decedent's children, or children of the decedent's children, who predeceased him.
Inheritance Law for Unmarried Decedents
If the decedent was unmarried at the time of death and left no will, but had one or more surviving descendants, those descendants receive the entire estate. For multiple descendants, Florida law divides the probate assets along generational lines. If all the decedent's children survive, the estate is equally divided among them. However, if the decedent had a child who predeceased her and that child had children, the share of the estate that would have gone to the deceased child now goes to her descendants - the decedent's grandchildren. If the unmarried decedent had no descendants, the estate passes to surviving parents. If the parents are also deceased, the estate passes to the decedent's siblings. Under Florida law, if the decedent had no siblings, the estate passes to relatives with more remote degrees of kinship.
Under Florida law, property owners are entitled to a Homestead Exemption - a tax-saving vehicle - if, as of January 1st, they made a property their permanent home or the permanent home of a person who is legally or naturally dependent on them. January 1 of each year is the date on which permanent residence is determined.
If the decedent and her spouse owned a homestead property that was titled solely in the decedent's name and there are other descendants, the surviving spouse may live in the homestead for the rest of his life, as a life estate. The surviving spouse may also decide, within six months of the decedent's death, to receive a one-half interest in the homestead property rather than the life estate. When the property is sold, the other half of the proceeds from the sale go to the descendants of the decedent.
A graduate of New York University, Jane Meggitt writes regularly for various legal blogs. Her work has appeared in LegalZoom, USA Today and many other publications.