When There Is No Will, Florida Law Decides Who Inherits

An intestate heir dispute in Florida starts when someone dies without a valid will and family members disagree about who inherits. Florida’s intestate succession statutes set the order of inheritance. The answer depends on family relationships and, when records conflict, on the court’s findings. This page explains who takes, how heirship is challenged, and which deadlines matter most. Leslie V. Marenco, of Trust Counsel, PL in Coral Gables, is the responsible lawyer for this page.

Who Inherits When Someone Dies Without a Will in Florida

When there’s no will, Florida law sets the shares. The statutes give the surviving spouse and certain relatives a fixed place in line.

Under Fla. Stat. § 732.102, the surviving spouse takes the entire intestate estate in some families. That happens when the decedent left no descendants, or when every descendant is also the spouse’s and the spouse has no other descendants. If the decedent left descendants who are not the spouse’s, the spouse takes one-half.

Under Fla. Stat. § 732.103, the rest goes to the decedent’s descendants first. If there are none, the estate goes to the decedent’s father and mother equally, or to the survivor of them. If neither parent survives, it passes to brothers and sisters and their descendants. Grandparents, uncles, aunts and other kindred come after that, in the order the statute sets.

Five relationships usually decide the shares: spouse, children, grandchildren, parents and siblings. A single missing or disputed relative can change the result.

Who Qualifies as an Heir and Who Can Dispute Heirship

An heir is anyone the intestacy statutes entitle to share in the estate. Heirship disputes ask whether a claimed person really meets that test.

Under Fla. Stat. § 731.201, heirs include the surviving spouse and others entitled under the intestate statutes. The same section excludes a person who is only a stepchild from the definition of “child.” So a stepchild generally does not take as a child.

Fla. Stat. § 732.108 treats an adopted person as a descendant of the adopting parent. For intestate succession purposes, Florida law treats an adopted person as a descendant of the adopting parent and as kin of all members of the adopting parent’s family, not as a descendant of the natural parents or kin of the natural parent’s family or any prior adoptive parent’s family. One exception is that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and the natural parent or the natural parent’s family (Fla. Stat. § 732.108). A child born outside marriage is a descendant of the mother. The child is also a descendant of the father if the parents took part in a marriage ceremony, even a void one. The same is true if paternity is established by court ruling, or if the father acknowledges paternity in writing.

An interested person is anyone who may reasonably be expected to be affected by the outcome. Under Fla. Stat. § 733.105, when property passes by intestate succession or the will is unclear and there is doubt about who is entitled or the shares, an interested person may ask the court to determine beneficiaries or their shares. Proper notice also matters. Under Fla. Stat. § 731.301, people given proper notice are bound by the orders entered in that proceeding.

Common Florida Heir Disputes Without a Will

Most intestate heir disputes involve a contested relationship, a contested marriage, or a fight over who manages the estate.

• Disputed marriage. A claimed spouse may be challenged. Under § 732.102, the spouse’s share depends on whether descendants are shared with the spouse.
• Disputed parentage or adoption. Children from earlier relationships, or a claimed child, may have their status questioned under § 732.108.
• Unidentified or unnoticed relatives. A missing heir can affect how the estate is divided.
• Competing requests to serve. Under Fla. Stat. § 733.301, the surviving spouse comes first in an intestate estate, then a majority in interest of the heirs, then the heir nearest in degree. A person entitled to preference who has not waived it, and who was not served formal notice, can seek appointment after letters have been granted; the letters may then be revoked and that person may receive letters after formal notice and hearing.
• Concerns about conduct. Fla. Stat. § 733.504 lists causes for which a personal representative may be removed and the letters revoked. Under Fla. Stat. § 733.504, a personal representative may be removed and the letters revoked for causes that include failing to account for estate property sold or to produce the estate’s assets when required, wasting estate assets or mismanaging the estate, and holding interests that conflict with the estate and may interfere with its administration; this last cause does not apply to a surviving spouse for exercising the right to the elective share, family allowance, or exemptions.

How to Challenge an Heirship Claim or a Personal Representative in Florida

You challenge an heirship claim by asking the probate court to decide it. You challenge a personal representative by asking the court to act, including to remove them.

1. Get the probate file. Review the petition, the notice of administration and the list of people served.
2. Ask the court to determine beneficiaries or shares under § 733.105 when property passes by intestate succession or the will is unclear and there is doubt about who is entitled or what share each person receives.
3. Gather proof. Collect birth, marriage and adoption records, prior court filings, bank and property records, and messages about family relationships.
4. Seek removal if needed. If the personal representative is acting improperly, ask the court to remove them under § 733.504.
5. Resolve the dispute. Expect discovery, depositions and an evidentiary hearing. Some matters go to mediation. Florida’s courts publish an ADR Resource Handbook that describes alternative dispute resolution, including mediation.

What to Expect in the Process and How to Protect Your Position

The process usually moves from notice to appointment, creditor claims, objections and final distribution. How long each step takes depends on the facts, including how many parties are involved.

Under Fla. Stat. § 733.212, the personal representative must promptly serve notice of administration on known people, including the surviving spouse and beneficiaries. A served person has 3 months after service to object to a will’s validity, the venue or the court’s jurisdiction. Those objections are otherwise forever barred. The 3-month period may be extended only for estoppel based on a personal representative’s misstatement of the deadline. The outer limit is the earlier of a final discharge order or 1 year after service.

While a dispute is pending, keep documents and messages. Keep a written record of estate expenses. Don’t take estate property before the court decides who is entitled to it.

Why Work With Trust Counsel on an Intestate Heir Dispute

Trust Counsel, PL focuses on probate litigation and trust litigation in Florida. That includes heir, beneficiary and personal representative disputes.

• The firm advises and represents trustees, personal representatives and beneficiaries.
• Trust Counsel’s attorneys can serve individually as trustee or personal representative.
• Trust Counsel’s only office is in Coral Gables. We serve clients in Fort Lauderdale, Boca Raton, West Palm Beach, Doral, Kendall, Pinecrest, Key Biscayne and Aventura.
• Leslie V. Marenco is responsible for this page. Trust Counsel’s lawyers include Leslie V. Marenco and Tanya Vega.
• A matter may be referred to another lawyer or firm where appropriate.

Frequently Asked Questions About Florida Heir Disputes Without a Will

Talk With a Florida Probate Litigation Attorney About Your Situation

If a relative died without a will and the family now disagrees about who inherits, you don’t have to sort it out alone. Losing someone is hard, and questions about shares, paperwork and deadlines can arrive all at once.

Bring the date of death, the family relationships, a rough list of what the estate holds, and any notices you have received. Trust Counsel’s attorneys can review those facts with you.

• Book a free strategy call at trustcounsel.com/contact
• Call (305) 707-7126
• Schedule online at trustcounsel.com/contact

The first consultation is free, confidential and comes with no obligation to continue.