What Happens If You Die Without a Will in Florida?
Why Having a Will Matters in Florida Estate Planning
Many Floridians delay making a will because it feels overwhelming or unnecessary. But under Florida law, if you pass away without a valid will, you are considered to have died “intestate.” That means the state of Florida decides who inherits your property according to a fixed formula — not necessarily the way you would have chosen.
At Smith Cors Law, our estate planning attorneys in Spring Hill and New Port Richey regularly help families understand how intestacy laws work and why proactive planning matters.
Understanding Florida’s Intestacy Laws
When someone dies without a will, Florida’s intestacy statutes (Chapter 732, Florida Statutes) dictate who inherits property. These rules vary depending on whether you were married, whether you had children, and whether those children are from the same relationship.
The court appoints a personal representative to gather assets, pay debts, and distribute property. Without a will, you don’t get to choose who fills that role.
Who Inherits If You Die Without a Will in Florida?
Here’s how the law typically applies:
- Married with no children (or children with the same spouse): The surviving spouse inherits the entire estate.
- Married with children from another relationship: The surviving spouse and the children split the estate, with the spouse usually receiving half and the children sharing the other half.
- Unmarried with children: The children inherit everything, divided equally.
- No spouse, no children: The estate goes to parents, then siblings, then more distant relatives.
- No living relatives: The estate may “escheat” to the State of Florida.
This formula does not account for stepchildren, long-term partners, friends, or charitable wishes.
Problems That Can Arise Without a Will
Dying without a will in Florida often creates issues such as:
- Unintended heirs – Assets may pass to people you did not want to benefit.
- Family conflict – Disagreements over who should inherit or serve as personal representative.
- Delays in probate – Courts must apply intestacy laws, which can slow the process.
- No guardian named for children – The court decides who cares for minor children.
- No control over distribution timing – Beneficiaries receive inheritances outright, even if young or financially unprepared.
What About Florida Homestead Property?
Homestead property in Florida carries unique protections and restrictions. Without a will or trust:
- A surviving spouse may receive a life estate in the homestead, with children receiving a remainder interest.
- Alternatively, the spouse can choose a one-half ownership interest instead.
- If there is no spouse, the property passes to the decedent’s children.
Florida’s homestead laws are complex, and intestacy can create complications when spouses and children have different rights to the property.
Intestacy and Minor Children
If you have children under 18 and die without a will:
- The court decides who serves as guardian, which may not align with your wishes.
- Children inherit property directly, without safeguards for managing the funds until adulthood.
- A trust created by a will could have delayed or managed distributions — but intestacy does not.
For families in Spring Hill or New Port Richey, this can create both legal and emotional challenges.
FAQs About Dying Without a Will in Florida
Does the State of Florida take my property if I die without a will?
Only if you have no surviving spouse, children, or other relatives. Otherwise, intestacy statutes direct your assets to family members.
Can stepchildren inherit without a will?
No. Stepchildren are not legal heirs under Florida intestacy law unless adopted.
Who decides who takes care of my children?
The court appoints a guardian. Without a will, you lose the ability to nominate the person you would have chosen.
Does everything automatically go to my spouse?
Not always. If you have children from another relationship, your spouse must share the estate with them.
Is probate required if I die without a will?
Yes. Probate is necessary to distribute assets under Florida’s intestacy laws.
Why a Will (and Trust) Create a Complete Plan
A properly drafted will avoids these issues by:
- Naming your heirs directly.
- Appointing a personal representative of your choice.
- Allowing you to name guardians for children.
- Coordinating with trusts and beneficiary designations for probate avoidance.
A revocable living trust can go further by keeping your estate private, avoiding probate delays, and providing incapacity planning.
Local Examples of Why Planning Matters
- Spring Hill homeowner: Without a will, her adult children fought over which sibling should handle probate. A simple will could have avoided the conflict.
- New Port Richey retiree: Believed everything would pass to his spouse. Instead, children from a prior marriage were entitled to half of the estate, creating tension.
- Young family: Died without guardianship instructions. The court appointed a relative the parents may not have chosen.
These scenarios highlight how intestacy laws often lead to outcomes families never intended.
Why Work with a Florida Estate Planning Attorney
Understanding intestacy rules is one thing — but creating a plan that avoids them is another. A Florida estate planning attorney can:
- Draft wills and trusts that reflect your wishes.
- Address homestead protections and spousal rights.
- Coordinate deeds, beneficiary designations, and trust funding.
- Prevent family disputes by creating a clear, enforceable plan.
Key Takeaways
- Dying without a will in Florida triggers intestacy laws, which dictate heirs by statute.
- Your property may go to relatives you did not intend, and probate is required.
- You cannot name guardians for minor children without a will.
- Florida’s homestead law complicates inheritance for spouses and children.
- Creating a will — often paired with a trust — gives you control and protects your family.
If you die without a will in Florida, the state decides who inherits your property, who manages your estate, and who raises your children. These decisions may not align with your wishes. By creating a will — and considering a trust for probate avoidance — you can take control of your legacy and spare your family unnecessary stress.
Jason Smith, a Marion County native and former state prosecutor, has built a distinguished trial practice while also teaching criminal justice at Pasco-Hernando State College and Saint Leo University, and leading Jericho Road Ministries as Board President.
