6.2 Intestate Succession and Share of Surviving Spouse

When a Florida resident dies without a valid will, their estate is distributed according to the rules of intestate succession. Intestacy also applies if a will is successfully contested and declared void, or if a will fails to dispose of all probate assets. Florida Statutes Sections 732.101 through 732.111 govern intestate estates, establishing a default distribution scheme based on presumed family intent. Intestate assets include only those that would have passed through a will (probate assets); they do not include non-probate assets such as property held in trust, joint tenancy with right of survivorship, or accounts with designated beneficiaries, which pass outside of probate.

Share of the Surviving Spouse

The intestate share of a surviving spouse is governed by Florida Statutes Section 732.102. The spouse's share is highly dependent on whether the decedent left surviving descendants (children, grandchildren, etc.) and whether those descendants are from the current marriage or a prior relationship.

Under Florida law, the surviving spouse’s intestate share is determined as follows:

• 100% of the Intestate Estate: The surviving spouse receives the entire estate if the decedent leaves no surviving descendants.
• 100% of the Intestate Estate (Common Descendants): The surviving spouse receives the entire estate if all of the decedent’s surviving descendants are also descendants of the surviving spouse, and the surviving spouse has no other children from outside relationships.
• 50% of the Intestate Estate (Step-Descendants): The surviving spouse receives 50% of the estate if the decedent is survived by one or more descendants who are not descendants of the surviving spouse. The step-descendants split the remaining 50% per stirpes.
• 50% of the Intestate Estate (Spouse's Other Children): The surviving spouse receives 50% of the estate if all of the decedent’s surviving descendants are also descendants of the surviving spouse, but the surviving spouse has one or more other children from outside relationships. The common descendants split the remaining 50% per stirpes. This rule protects the decedent's genetic children from having their inheritance eventually pass to the spouse's other children who are unrelated to the decedent.

Share of Other Heirs (Order of Distribution)

If no spouse survives or assets remain, Florida Statutes Section 732.103 dictates this order of distribution:

1. Descendants: Lineal descendants of the decedent.
2. Parents: Father and mother equally, or the survivor.
3. Collateral Heirs: Brothers and sisters, and descendants of deceased siblings.
4. Grandparents and Descendants: Half to paternal, half to maternal grandparents and their descendants.
5. Last Deceased Spouse's Family: Kindred of the last deceased spouse.
6. Escheat: If no heirs exist, the estate escheats to the State of Florida for the State School Fund.

Strict Per Stirpes Distribution

Florida utilizes a "strict per stirpes" (classic per stirpes) system of representation for distributing shares to descendants, brothers, sisters, or other collateral heirs. Under strict per stirpes, the estate is divided into equal shares at the first generational level of descendants, regardless of whether there are any living members at that generation.

To calculate distribution under strict per stirpes:

• A share is created for each living person at the first generation (typically children).
• A share is created for each deceased person at that same generation who left surviving descendants.
• The shares of deceased persons are passed down to their descendants by representation, dividing the parent's share equally among them.

Example: Assume the decedent had three children: A, B, and C. Child A is alive at the decedent's death. Children B and C predeceased the decedent. B left two surviving children (grandchildren of the decedent). C left three surviving children. Under Florida's strict per stirpes system:

• The estate is divided into three equal shares (one-third each) at the child generation, because B and C left descendants.
• Child A receives 1/3 of the estate.
• B’s 1/3 share is divided equally between B’s two children (each grandchild gets 1/6).
• C’s 1/3 share is divided equally among C’s three children (each grandchild gets 1/9).

Contrast this with the modern "per capita at each generation" system, where all grandchildren whose parents are deceased would take equal shares. In Florida, grandchildren do not take equal shares if they belong to different branches of the family tree.

The Uniform Simultaneous Death Act

The Florida Uniform Simultaneous Death Act (Fla. Stat. § 732.601) governs situations where the order of death between two individuals cannot be established. If a decedent and an heir or beneficiary die under circumstances where there is insufficient evidence that they died otherwise than simultaneously, the property of each is disposed of as if they had survived the other.

Key applications of the Simultaneous Death Act include:

• Intestate Succession and Wills: An heir or beneficiary is deemed to have predeceased the decedent. Thus, the heir cannot inherit, and their share passes to the next eligible person or lapses.
• Joint Tenancies: If joint tenants with right of survivorship or tenants by the entirety die simultaneously, the property is split 50/50 and distributed as if they held it as tenants in common.
• Life Insurance: If the insured and the primary beneficiary die simultaneously, the policy proceeds are distributed as if the insured survived the beneficiary.

Unlike the Uniform Probate Code, which requires a beneficiary to survive the decedent by 120 hours to inherit, Florida law does not require any specific duration of survival. It only requires "insufficient evidence" that the deaths were not simultaneous. If there is evidence that one survived the other by even a split second, the Simultaneous Death Act does not apply.