Oct 112012
 

The answer is, possibly.  One of the most persistent estate planning “myths” around is the belief that if someone dies without a will, the State of Florida is entitled to their possessions.  While it is possible that Florida could collect a windfall upon a person’s passing, it is by no means a certainty.

When a Florida resident dies without a will, they are considered legally “intestate.”  Given the relative frequency of this occurrence, it is not surprising that the Florida Statutes have a procedure in place for controlling the disposition of the decedent’s property.

If there is a surviving spouse, Florida Statute § 732.102 determines their share as follows:

  1. If there is no surviving descendants (children, grandchildren, etc.) of the decedent, the surviving spouse receives the entire estate.
  2. If the decedent is survived by one or more descendants who are ALSO the descendants of the surviving spouse, and the surviving spouse has no other descendants, the surviving spouse receives the entire estate.
  3. If the decedent has descendants who are NOT also lineal descendants of the surviving spouse, then the surviving spouse receives one-half of the intestate estate.
  4. If the decedent is survived by one or more descendants who are also the descendants of the surviving spouse AND the surviving spouse also has a descendant who is NOT related to the decedent, then the surviving spouse receives one-half of the intestate estate.

Once the surviving spouse’s interest has been satisfied, or if there is no surviving spouse, Florida Statute § 732.103 determines that the intestate estate is distributed as follows:

  1. To the descendants of the decedent.
  2. Then to the decedent’s father and mother equally, or to the survivor of them.
  3. Then to the decedent’s brothers and sisters and their descendants.

Then one-half to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order:

  1. To the grandfather and grandmother equally, or to the survivor of them.
  2. Then to uncles and aunts and their descendants.
  3. If there is either no paternal kindred or no maternal kindred, then all of the estate will go to the other kindred who survive, in the order stated above.
  4. If there is no kindred on either side, then the whole intestate estate will go to the kindred of the last deceased spouse of the decedent as if that deceased spouse had survived the decedent and then died intestate and entitled to the estate.

If the decedent dies without being survived by any of the persons listed above, then their estate will go to the State of Florida (“escheat”).  If, at any time within 10 years after distribution to the state, a person comes forward with a claim of entitlement to the proceeds, the estate may be reopened.  If no claim is asserted within the ten year period, then the state’s right to the proceeds becomes absolute.

Thus, the answer to the question, is possibly.  A better answer, however, is to contact a Florida estate planning attorney and have a will drawn up.  This should eliminate all ambiguity and ensure that the Florida Statutes do not have the final say.

By Karel Ourednik