Jenna Kyle Meltzer, Esq.
Estate Planning Law
As estate planning attorneys we are often asked, “Who will inherit my assets if I die without putting a will in place?”
Many people believe that without a last will and testament (a will), the state of Florida will automatically become the beneficiary of their estate upon their death. This is incorrect.
When you die without a will, you are considered to have died “intestate”. The state of Florida has a statute in place outlining who a person’s beneficiaries are if they do in fact die intestate. This default set of instructions is not always what people would presume or prefer. This article will take a look into Florida Statutes 732.101 and 732.102 and explore who your beneficiaries would be if you died in the state of Florida without a will.
Florida Statute 732.101 provides who your beneficiaries would be if you died without a will but with a spouse. If you die with a spouse and with no children, your spouse will inherit 100 percent of your estate. The same is true if you die with a spouse and with children, who are children of both you and your spouse.
However, if you die with a spouse, but with children who were not also children of your spouse, your spouse would receive 50 percent of your estate and your children would share the other 50 percent.
For example, Stanley died married to Tracy. Stanley and Tracy had no children together, but Stanley had a daughter, Sabrina, from a previous marriage. Therefore, Tracy would inherit 50 percent of Stanley’s estate and Sabrina would inherit the other 50 percent. Further, if you die with a spouse, with some children in common and some children not in common, your spouse will receive 50 percent and your children will receive 50 percent.
But, not everyone is married at the time of their death. If you die without a will and without a spouse, Florida Statute 732.102, instructs who your beneficiaries would be.
First, we look to see if you died with any children. If you die with children, your estate will be divide equally amongst your children. In the sad instance that one of your children predecease you, with a child or children themselves (your grandchildren) your estate would be divided amongst the number of children you had, with your living children getting their share, and the child or children of your deceased child (your grandchildren) receiving their parent’s share. For example, Stacy died without a spouse, but with two surviving children, Rebecca and Richard. Sadly, Stacy’s daughter Rochelle predeceased her. Rochelle had two children, Anna and Andrew. Stacy’s estate would be divided as follows: one third to Rebecca, one third to Richard and one third divided equally amongst Anna and Andrew.
But, if you also had no living children or grandchildren at the time of your death, we look to see if either of your parents are living. If both of your parents are living, they each receive 50 percent of your estate. If only one of your parents is still living, they will receive 100 percent of your estate.
In the instance you have no living parents we then look to see if you have any living siblings. If you have living siblings, they will equally inherit your estate. If you have a half sibling, your half sibling will inherit half of what your full blood siblings are inheriting. In the instance one or more of your siblings predeceased you, we look to see if that sibling had any children (your nieces and nephews). If they did, those nieces and nephews would inherit their parent’s share of your estate. For example, Kevin died without a spouse, without living children/grandchildren and without living parents. Kevin was survived by his sister Amy and his brother Alan. Kevin was predeceased by his brother Kalvin who had two children, Kevin’s nephews, Isaac and Brian. Kevin’s estate would be distributed as follows: one third to Amy, one third to Alan and one third divided equally amongst Isaac and Brian.
However, not everyone will be survived by siblings and or nieces and nephews. In the instance you die with no spouse, no living children, no living parents, no living siblings and no living nieces and nephews, your estate will be divided in two. Thus, 50 percent of your estate will go to your maternal side of your family and 50 percent will go to your paternal side of your family, in the following order:
• Grandfather and grandmother equally, or the survivor of them
• If none, uncles and aunts and children or grandchildren of your uncles and aunts (cousins)
• If there are no surviving beneficiaries on one side of your family, for example the maternal side, the other side with surviving beneficiaries, the paternal side, would receive 100 percent of your estate.
• If there are still no surviving beneficiaries, we then determine if you had a spouse who predeceased you. If so, we then go through the following process, explained above, for that spouse to determine a beneficiary/beneficiaries.
• In the extremely unlikely case that there are still no beneficiaries, your estate will “escheat” (go) to the state of Florida.
Based on the above explanation you see it is possible that the state of Florida could be the beneficiary of your estate if you die without a Will, but it is incredibly unlikely. Nonetheless, while it is likely not the state of Florida, these default beneficiaries might not be who you envisioned inheriting your estate. To ensure your estate is inherited by your desired beneficiaries, it is important to work with an estate planning attorney to create an estate plan that reflects your wishes and works best for you and your family.
To make sure your assets are going to those you prefer, contact Estate Planning Attorney Jenna Kyle Meltzer at 941.748.0100.
