Florida is the rare state where the homestead protection can override even a properly written will, and intestate distribution gets complicated fast when there are children from prior relationships involved.
Most states have an intestate succession statute that decides who inherits when you die without a will. Florida has all of that, plus a homestead protection so powerful it can override your will if you do write one. Plus an elective share that lets a surviving spouse claim 30% of your estate even if you tried to disinherit them. Plus a fast-track summary administration for smaller estates that almost no other state handles the same way.
The result is that "what happens if you die without a will in Florida" has more layers than the typical state. The base layer is Florida Statutes Chapter 732, which lays out the default distribution rules. On top of that sits the homestead protection, which is constitutionally rooted and applies whether or not you have a will. The whole thing rewards the families that take the time to plan and punishes the ones who don't.
Florida's constitution protects the homestead, which is the primary residence owned and lived in by a Florida resident. The protection has multiple components, but the one that matters most for estate planning is the descent and devise rule.
If you are survived by a spouse and you have no minor children, you can devise the homestead by will to your spouse outright, and the constitutional protection follows the property. If you are survived by a spouse and minor children, you cannot devise the homestead at all. By operation of law, the surviving spouse takes a life estate in the homestead, and your minor children take the remainder. Or, if the surviving spouse elects within six months of your death, the spouse and children take the homestead as tenants in common, with the spouse owning a one-half interest and the children dividing the other half.
This rule applies whether or not you wrote a will. You cannot will your Florida homestead to anyone other than your spouse if you have one, and you cannot disinherit your minor children from the homestead under any circumstances. The constitutional protection trumps the will.
If you live in Florida, are married, and have minor children, the law decides what happens to your house regardless of what your will says. The surviving spouse gets either a life estate or a half-interest, and the kids get the rest. This is one of the strongest forced-heirship rules in the country.
For everything other than the homestead, Florida Statutes Chapter 732 governs intestate distribution. The rules track most of the patterns you would expect, with one big exception that catches blended families.
If you die without a will in Florida, are married, and have no descendants from any relationship, your spouse inherits the entire estate. Clean, simple, the way most spouses assume the law works. This includes any non-homestead real estate, all bank accounts, all personal property, and any retirement assets that are not directed elsewhere by beneficiary designation.
If all of your descendants are also descendants of your surviving spouse (so the family is fully intact, no children from prior relationships on either side), your spouse takes the entire estate. Florida assumes the surviving parent will pass the estate along to the children eventually.
This is the scenario that surprises blended families. If you have any descendants from a prior relationship, or if your surviving spouse has any descendants from a prior relationship, the surviving spouse takes only one-half of the intestate estate. The other half passes to your descendants by representation.
The "or" in that rule is the part most people miss. Even if all of your children are from your current marriage, if your surviving spouse has children from a prior relationship, the law assumes those step-relationships could create complications and splits the estate accordingly. The legislature is essentially trying to keep your bloodline assets in your bloodline.
If you have no surviving spouse, your descendants take the entire estate by representation. "By representation" is Florida's version of per stirpes: each branch of the family tree gets one share, and that share splits down through the descendants of any predeceased child.
The estate goes to your parents in equal shares. If neither parent is alive, it goes to your siblings and their descendants by representation. If no siblings, the search moves to grandparents, then to aunts and uncles, then to cousins. Florida keeps searching, but if no living heir is found, the estate escheats to the State School Fund.
The elective share is Florida's other big estate planning curveball. Even if you write a will and intentionally leave your spouse less than 30% of your estate, Florida law gives the surviving spouse the right to elect to take 30% of the "elective estate" instead. The elective estate is broader than the probate estate. It includes most of the assets you might have tried to use to circumvent the rule: revocable trust assets, certain transfers made within the last year, payable-on-death accounts, joint tenancy property, and the cash surrender value of life insurance you owned.
The elective share applies whether you die with or without a will. It cannot be waived after the fact, but it can be waived in advance through a properly executed prenuptial or postnuptial agreement. The surviving spouse has six months from notice of administration or two years from the date of death (whichever is earlier) to file the election.
Even if the intestate distribution gives your surviving spouse less than 30% of the elective estate (which can happen in blended families with significant non-probate assets like POD accounts), the surviving spouse can claim the higher 30% elective share instead. The intestate rules set the floor; the elective share can raise it.
For smaller estates, Florida offers summary administration, a streamlined probate process that bypasses the formal administration timeline entirely. Summary administration is available in two situations.
The two-year rule is the one most people don't know about. If a Florida estate has been sitting unprobated for more than two years, even a substantial estate qualifies for summary administration. This often happens when a surviving spouse delays probating an estate, or when an out-of-state heir discovers Florida property years after the death.
Summary administration involves a single petition signed by the surviving spouse and any other beneficiaries, a court order distributing the assets, and a much faster timeline. There is no personal representative appointed, no notice to creditors required (in the death-only-once context), and no formal accounting. Most summary administrations close in two to three months.
If the estate exceeds $75,000 and the decedent has been dead less than two years, the estate must go through formal administration. The court appoints a personal representative (Florida's term for executor or administrator), the personal representative gives notice to creditors, creditors have three months to file claims, and the personal representative ultimately accounts to the court before distributing assets.
Formal administration in Florida typically takes 6 to 12 months for an uncontested estate. Attorney fees are statutory and tied to the value of the estate, generally 3% of the first million dollars and decreasing percentages above that. Personal representative fees follow a similar statutory schedule.
Florida treats certain assets as "non-probate" and they pass outside the intestate statute regardless of what the will says. These include:
Florida is one of the few states that recognizes the Lady Bird deed (also called an enhanced life estate deed). It lets the owner retain full control of real estate during life, including the right to sell or mortgage without anyone's consent, while automatically transferring the property to a named remainder beneficiary on death without probate. It is a popular planning tool for Florida families who want to keep a vacation home or rental property out of probate.
Between the homestead descent rules, the elective share, and the blended-family split, Florida is one of the highest-stakes states in the country to die without a clear estate plan. A surviving spouse can lose half the marital home to the deceased's adult children from a prior marriage. A blended family can find themselves owning the homestead as tenants in common with stepchildren they barely know. A spouse can be left with less than 30% of an estate that the deceased thought was fully under control.
Every one of those outcomes is preventable with a will, a properly drafted Lady Bird deed, beneficiary designations that reflect actual intent, and (in some cases) a revocable trust. Florida rewards careful planning more than almost any other state.
For a broader picture of how intestate succession works across the country, our overview of what happens when you die without a will covers the major patterns. If you are ready to take action, our guide on how to write a will walks through the Florida-specific execution requirements (two witnesses, both present, plus a notary if you want it self-proved). For Florida property owners specifically, the transfer-on-death deed and Lady Bird deed guide explains how to keep real estate out of probate entirely while keeping all of your control.
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