When a person dies in Florida without having written a will (a situation known as “intestate”), Florida law determines the distribution of their estate according to a specific order of priority, except in certain cases.
Distribution between spouse and descendants: the surviving spouse inherits 100% of the estate in two cases. First, when the deceased leaves no descendants; second, when all of the deceased’s descendants are also those of the surviving spouse and the latter has no other children from another union.
However, the surviving spouse receives only 50% of the estate in the following situations: when the deceased has descendants who are not those of the surviving spouse, or when the surviving spouse has children from a previous union. In these cases, the other half goes to the descendants of the deceased, who share it equally. If one of the children has predeceased the deceased, their share is allocated to their own descendants through the mechanism of representation.
When the deceased leaves no spouse or descendants, the estate is allocated according to the following order of priority: 1. To the parents of the deceased (50% to each if both are alive or 100% to the survivor); 2. To the brothers and sisters, or to their descendants in the event of predecease (in equal shares between the brothers and sisters or, if one of the brothers or sisters is predeceased, their share is allocated to their own descendants); 3. To the grandparents, then to the uncles and aunts; 4. To cousins and other more distant collateral relatives.
Only in the total absence of identifiable heirs does the estate revert to the State of Florida, according to the principle of “Escheat.”
However, it should be noted that a special rule exists for the personal property of non-residents. A specific provision applies when the deceased was not domiciled in Florida. Section 731.106 of the Florida Statutes establishes a fundamental distinction: although probate proceedings may be opened in Florida, the devolution of a non-resident’s personal property is governed by the law of their domicile at the time of death, not by Florida law. This means that bank accounts, securities, and other movable assets located in Florida will be transferred in accordance with the inheritance rules of the state or country where the deceased was domiciled. However, this rule does not apply to Florida real estate, which remains subject to Florida law under the principle of “lex situs” (the law of the place where the property is located).
Certain assets are exempt from the probate process and are transferred directly to the designated beneficiaries, including life insurance policies with a beneficiary clause; bank accounts designated as “payable on death” (POD); property held in joint tenancy with right of survivorship or tenancy by entirety; and property placed in a trust.
Therefore, the absence of a will can lead to a distribution of assets that is radically different from the wishes of the deceased, particularly in cross-border situations involving non-residents. Appropriate estate planning, including the drafting of a will that complies with applicable law, is therefore essential for anyone who wishes to control the transfer of their assets.
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