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If a resident of Florida dies in our State without leaving a valid Last Will and Testament, then Florida’s probate law will decide how the decedent’s property is to be distributed to heirs. Florida’s intestacy statute controls in this scenario, which is something we have discussed in earlier posts (like this article about dying without a Will).

You can read the Florida intestacy law here: Chapter 732 of the Florida Probate Code.

If you don’t have a Last Will and Testament upon your death, then these laws decide who inherits your Florida real estate and other personal property, as well as how your creditors are to be paid (like credit card debt, mortgages, funeral expenses, etc.).
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Statutory Structure and Complicated Situations

This law is meant to keep things straightforward and prevent confusion after someone dies without a will.  It generally works well.

However, things are not always simple. Sometimes, when a probate court is left to distribute a deceased person’s real estate and personal property according to this statutory structure, there are peculiar situations that arise that aren’t that easy to reconcile under the law.

Surprising results under Florida intestacy laws happen more often than you think.  Here are a few examples of twists that can result from application of the Florida intestacy statutes.

1. Application of the Laws of Another Country: International Probate

Here in South Florida, you can find people who come here from all over the world. Many are tourists on vacation, enjoying the restaurants of Miami or the beaches of Palm Beach. Others live here, at least part of the year, and are considered residents of the state. Sometimes the laws of their country of origin can complicate a Florida probate matter.

For instance, under Florida’s intestacy laws, the “surviving spouse” is allowed to inherit. However, when the couple was married in another country, things can become interesting. Florida law demands that the widow or widower be confirmed as a “spouse” under the laws of the nation where the marriage took place.

Was it a valid marriage? Were the two considered to be a married couple, husband and wife, at the time of death?

Florida probate courts may see experts on marital law in other lands giving legal opinions on the marital status of the person claiming to be a “surviving spouse.” And that person may or may not end up inheriting property from the decedent’s estate under Florida’s intestacy laws. It will not be Florida’s laws but the laws of that foreign country that make this determination.

Angelika, Jurgen, and Their German Marriage

For example, several years ago a German woman named Angelika Salathe died, leaving property she owned here in Florida as part of her estate. Her husband, Jurgen Salathe, came before the Florida probate court asking for his inheritance of that property as her “surviving spouse” under the Florida intestacy scheme.

The representatives of her estate in Germany, appointed in the German courts, appeared here in Florida and argued that Jurgen should get nothing. It went against her wishes.

It was shown that the couple had been married in Germany, and it was not a happy union. While in Germany, they obtained a “separation agreement” under German law. This document stated that the marriage ended in July 1992 and if the couple were to reconcile, then they would need to draft a formal writing that attested to that fact. It never happened.

Afterward, the wife stayed in Germany, raising their only child in that country until she passed away. Jurgen came to Florida and lived in the house that Angelika owned in Manatee County, Florida. He tried to get a divorce under Florida law but his case was dismissed. It was held that he needed to get a divorce in a German court because the marriage was under German law.

Before she died, Angelika wrote a will by hand in Germany that stated Jurgen was to inherit nothing from her. She gave detailed reasons for her decision in the will. She left all she owned to her only child.

After her death, Jurgen filed his petition for administering her Florida estate, asserting he was her surviving spouse and that the handwritten will, presented by the German representatives of her estate, was invalid under Florida law.

The Florida probate court agreed that the handwritten will was not recognized by Florida law. Florida intestacy laws would apply regarding the Manatee County property.

However, whether or not Jurgen would be recognized as the “surviving spouse” would be determined under German law. Not Florida law.

This was because (1) the parties’ entire marriage and separation took place in Germany; (2) the decedent continued to live with their minor child in Germany until her death; (3) the separation agreement was executed in Germany; (4) every connection between the parties concerning their marriage arose in Germany; and (5) the German nexus had already prevented Jurgen Salathe from obtaining a Florida divorce from the decedent in Florida.

Under German law, the couple had separated but had never formally divorced. The laws of the Federal Republic of Germany state that parties are not legally divorced absent a valid, judicially rendered final judgment. There was no final divorce judgment entered in Germany for this couple.

Therefore, the Florida court held that under German law, Jurgen was still her legal husband . He would be recognized as her “surviving spouse” for purposes of distributing the real estate she owned in Florida.

Read the case here: In re Estate of Salathe, 703 So. 2d 1167 (Fla. Dist. Ct. App. 1997).

2. Complicated Family Trees

Under the Florida intestacy laws, “heirs” are those individuals who inherit the intestate property; they are sometimes called “heirs at law.” (The term “beneficiaries” is used for those who stand to inherit under a valid Last Will and Testament.) They are also known as the decedent’s “next of kin.” Grant v. Odom, 76 So. 2d 287 (Fla. 1954).

Only those appointed by law to inherit under the Florida intestacy statutes are considered to be the deceased person’s heirs. If there is not a connection between the statutory language and the person claiming an inheritance, then they are not legally an “heir” and will not inherit under Florida law.

This can be confusing and upsetting in some family situations. For instance, when there are nieces and nephews who are survive their uncle as well as his widow, then they are not considered to be “heirs at law” under the Florida intestacy laws, and his surviving spouse inherits the property they assumed they were entitled to receive. In re Knight’s Estate, 155 Fla. 869, 22 So. 2d 249 (1945).

However, someone who is no blood relation whatsoever may inherit when evidence establishes their “virtual adoption” by the decedent.

Can a Foster Child Inherit Even Though Never Officially Adopted?

When Clarence Williams died, he left no will. His two sons were named as personal representatives of his estate. Clarence also had a foster daughter named Beth Angel Dorrell, who came to live with him and his wife when she was a five week old infant. Williams v. Dorrell, 714 So.2d 574, 575 (Fla. 3d DCA 1998).

The couple raised Beth Angel as their own. She lived with them until Clarence passed away, and Beth Angel took care of Clarence and nursed him in his last illness. She was 27 years old at the time of her foster father’s death. Many times over the years, Clarence had told Beth Angel (and others) that he had every intention of officially adopting her as his child.

Since Beth Angel had never been officially adopted by Clarence Williams, his sons argued to the Florida probate court that she could not inherit under the Florida intestacy laws. She was not his daughter, so she should get nothing.

The Florida probate courts disagreed. It was held that an equitable doctrine called “virtual adoption” applied to Beth Angel’s situation. Under Florida law, “virtual adoption” does not create a parent-child relationship legally, but it does work to prevent injustice when parents fail to take the needed legal steps to formalize their intent. See, Tarver v. Evergreen Sod Farms, Inc., 533 So.2d 765, 766 (Fla.1988); Laney v. Roberts, 409 So.2d 201, 203 (Fla. 3d DCA 1982).

Moreover, Beth Angel provided the needed evidence to establish the doctrine of virtual adoption:

1. an agreement between the natural and adoptive parents;
2. performance by the natural parents of the child in giving up custody;
3. performance by the child by living in the home of the adoptive parents;
4. partial performance by the foster parents in taking the child into the home and treating the child as their child; and
5. intestacy of the foster parents.

See, Williams v. Dorrell, 714 So.2d 574, 575 (Fla. 3d DCA 1998).

Who is a Descendant or Next of Kin?

Under the Florida intestacy laws, “next of kin” is a legal term. It means those people who are related by blood to the decedent, and who legally inherit under the intestacy statutes. Usually, it’s easy enough to figure out who are the “next of kin.”

They will be the nearest blood relations to the person who has passed away. However, some families are shocked to learn how the Florida probate laws divide up family relationships in defining “next of kin.”

Under Florida law, “next of kin” does not include:

  • a brother’s wife,
  • nephews and nieces, or
  • children of a deceased brother, where there are surviving brothers.

Meanwhile, “next of kin” will include relatives of the half blood as well as the whole blood. And, as described above regarding “virtual adoption,” there will be times when someone with no blood relation will inherit.

For example, a stepson has been found to be “next of kin,” Grant v. Odom, 76 So. 2d 287 (Fla. 1954) and where a person died without a will leaving only his grandmother and an aunt, the grandmother was legally held to be his “next of kin” for purposes of inheriting under the intestacy laws, not the aunt. Smith v. Croom, 7 Fla. 81, 1857 WL 1527 (1857).

Why? Blood lines are valued in Florida.

Here, “descendants” under the Florida Probate Code refer to those people who are related by blood to a common ancestor. In re Hewett’s Estate, 153 Fla. 137, 13 So. 2d 904 (1943); In re Levy’s Estate, 141 So. 2d 803 (Fla. Dist. Ct. App. 2d Dist. 1962).

If a person dies, and his aunt survives him then her children are considered his “descendants” because they are all blood related. If that aunt has a son who adopted a daughter, she is not a “descendant” of the aunt because she is not related by blood. Unless virtual adoption applies, she will not be considered a descendant.

Furthermore, a husband is not related by blood to his wife. He is not her “descendant.” However, widowers (and widows) are given special protections as “surviving spouses” under Florida’s intestacy laws.

Florida Intestate Succession

In Florida, our Probate Code sets up a structure to define how property is to be distributed to those who survive the death of the property owner. This is called “succession.” While the intent of the Florida intestacy laws is to organize and streamline “succession” when the property owner dies without a will, there are occasions where things get complex because of the particular situation of the case.

Having a Florida probate lawyer to help plan in advance by preparing an estate plan (even if it’s just a Will) is important. It avoids the application of the legislative scheme on the estate and avoids the foregoing complications. Unfortunately, there will be people who pass without a valid will, and in these situations it can be critical for family members to enlist the aid of a Florida probate lawyer to insure that their inheritance is recognized and protected.

A good piece of advice if you are faced with a Florida estate with no valid Will, is to at least talk with a Florida probate lawyer to learn about your rights. Most probate lawyers, like Larry Tolchinsky, offer a free initial consultation (either over phone or in person, whichever you prefer) to answer your questions.


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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