The 2 Tiers of Intestacy Laws in Florida.


If you die without having made a Last Will and Testament (“Will”), trust or other provision for the distribution of your property, it will be distributed according to Florida’s laws of intestacy.

Florida has 2 tiers of intestacy laws which we will discuss in more detail below.

But before we dive into that discussion, it may be helpful to get a better understanding of what the intestacy laws are and how they work.

A Brief Look at Intestacy

Back in the Middle Ages, they didn’t have the forward-thinking estate and probate attorneys we have today. So most people only made a Will if they were on their deathbeds and the local priest could talk them into making a Will in which they would leave a portion of their property to the church and the poor in exchange for eternal salvation. Those who died intestate (i.e., without having made a Will), then, were generally regarded with horror because they were looked upon as having died unconfessed.

While perhaps not exactly regarded with “horror” in today’s estate planning arena, dying intestate is still regarded as a disfavored approach to estate planning.


Because intestacy takes all the decisions regarding your property out of your hands and gives it to the law and probate judges. Dying intestate leads directly to the time-consuming and expensive process of probate.

Probate is the court-supervised process of distributing a decedent’s assets. It takes time, it causes family disputes, and it costs a lot of money.

Intestacy does not apply to all property. It applies only to assets that do not pass due to:

  • Survivorship rights
  • Beneficiary designation
  • Assets in a trust, or
  • Other Will substitutes

Also, it is worth noting that the intestacy rules do not apply to assets that are subject to other statutory rules like homesteads, other exempt property.

In our current system, when one dies intestate, the laws of intestacy favor giving the intestate’s property to his or her relatives.

But that wasn’t always the case.

Apparently prior to the thirteenth century, the old rule in England was that if one died intestate, your “movables” (i.e., goods or property) could be seized by the lord. By 1357, statutory law required that, after payment of debts, one-third of an intestate decedent’s property went to his wife, one-third to his children, and the other third (the “dead’s part”) was used to pay for pious works. If he died with a wife but no children, or children but no wife, then his part (the “dead’s part”) was one-half.

Intestacy laws no longer require that a portion of an intestate’s estate be used to pay for “pious works,” but they do still distribute intestate shares according to one’s relationship with the deceased.

The 2 Tiers of Intestacy

The general rules of intestacy provide for two tiers of beneficiaries.


  1. The surviving spouse

In Florida, the surviving spouse makes up the first tier of intestate beneficiaries.

(For ease of reading, “decedent” will be referred to in the male gender, and “descendants” will be referred to as “children.”)

If the decedent dies having children with the surviving spouse, and neither the surviving spouse nor the decedent has other children from previous relationships, then the surviving spouse gets 100% of the intestate estate.

If the decedent dies having children with the surviving spouse, and the surviving spouse has children from prior relationships, then the surviving spouse gets ½ of the intestate estate and the decedent’s children get the other ½.

If the decedent leaves children who are not the children of the surviving spouse, then the surviving spouse gets ½ the intestate estate and the decedent’s children get the other ½.


  1. Parents, brothers, and sisters

The second tier of beneficiaries are relatives who will inherit if there is no surviving spouse or children/grandchildren of the intestate.

Parents are first in line to receive an intestate share.

Brothers and sisters come next.

If the decedent is not survived by parents or brothers and sisters, one-half of his estate goes to his paternal side (starting with grandparents) and the other half to his maternal side, and it continues on in increasing degrees of relation from there.


Do You Want the Law to Decide Which of Your Relatives Gets Your Money?

Without question the laws of intestacy are helpful in determining who should inherit when a person dies without having left any instructions in a Will or trust.

But do you really want the law to decide for you who gets your property?

Probably not.

So don’t leave it to chance. Consult an experienced estate and probate attorney  today and get the protection you need.


Estate Planning That Makes Sense for You.

Helping individuals plan their estate and navigate the probate process is what the attorneys at SJF Law Group do. We provide individualized estate plans and expertly guide individuals through the complex probate process, and capably handle all aspects of the creation, administration, and settlement of trusts as well. Contact us here or email us at: [email protected].

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