Who Gets Your Property if You Die Without a Will in Florida? Determining Heirs Without a Will Under Florida Law

Posted By on November 7, 2013

In Florida, it’s important to have a valid will — if you die without a valid Florida Last Will and Testament, then Florida law is going to decide where your property goes and who gets what.  In lawyer-language, that means Florida law will “determine the heirs of the estate under the provisions of Florida intestate law.”

key biscayne, florida

Key Biscayne, Florida, is a beautiful place to buy a retirement condo – but who gets it when there’s no valid Florida will?

Example: Florida Condo Owner Mr. Smith Dies Without a Will

For instance, say Mr. Smith owns some nice, sunny, oceanfront Florida real estate, and procrastinates on getting his Florida Last Will and Testament written. Mr. Smith dies an untimely death, and everyone is very sad about his passing. In the midst of their grieving, however, some family members notice that bills keep coming and soon questions start to be raised about Mr. Smith’s property.

Everyone searches for a will. They can’t find one (which is, of course, because Mr. Smith never made one.)

What to do? Mr. Smith’s family members must seek legal counsel to find out what happens next, because Florida law now controls what is going to take place.

Florida intestate law answers this question and others as to how assets are distributed, including Florida real estate. This is true even if Mr. Smith lives in Topeka, Kansas, and he bought a Florida condo as an investment, and never ever ever came to visit the beautiful Sunshine State.

Assuming that there is a widow in the Mr. Smith Scenario, she is considered a “surviving spouse” under Florida law.  What happens next, depends on the answers to various questions. For example;

  • If Mr. And Mrs. Smith have no kids or grandchildren, then Mrs. Smith gets everything (100%).
  • If there are children, things get tricky under Florida law and lots of questions arise: were these the offspring of Mr. Smith and Mrs. Smith? Is this now homestead property? Was the death before or after October 2011?

For details on these questions, check out our Distribution Discussion on our HallandaleLaw web resources page.

Sometimes Everyone Gets Something: The Case of the Key Biscayne Condo

A few years ago, Hillard J. Aronson died without a will – however, he didn’t neglect his estate matters: Mr. Aronson created a trust as part of an estate plan. He owned a condo in Key Biscayne, among other property.  When he died, there was a lot of litigation over his estate as to who got what asset (between Mr. Aronson’s widow, Doreen, and his kids).

The Aronson situation provides a good example of how sometimes Florida law can work to the benefit of everyone in these situations.

Here’s what happened.

The Aronsons originally lived in Massachusetts, until Hillard and Doreen decided to move to Florida.  They sold their Massachusetts home and put all the sales proceeds into buying their Key Biscayne condominium.

Sadly, Hillard Aronson died a year after their move, leaving Doreen a widow living in their new Florida condo.

The family looked to the language of the Hillard J. Aronson Revocable Trust, which held the Key Biscayne condominium as an asset.  That’s when a legal battle erupted over who got what property.

Here, the Key Biscayne condo was ultimately ruled by the Florida appeals court to be Mr. Aronson’s homestead under Florida law, and this condo had passed outside of probate to his wife as a life estate with his two sons receiving an interest in the real estate per stirpes. (Florida Statute 732.401(1)).

The Florida Homestead Law provides in part:

732.401 Descent of homestead.—
(1) If not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes.
(2) In lieu of a life estate under subsection (1), the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes.

Here, Mr. Aronson’s widow took the Key Biscayne condominium as a “life tenant” – she could live their during her lifetime – which meant she was legally responsible for the condo’s daily expenses.  Basically, it was her home for as long as she lived under Florida law. Once she passed away, the property was then transferred to Mr. Aronson’s children.  Hopefully, that’s was Mr. Aronson intended to happen.

For more details, see Aronson v. Aronson.  

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Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 

 

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