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Intestate Estate: Which Children Will Inherit and Who Gets Left Out?

On Behalf of | May 14, 2021 | Estate Planning, Firm News, Probate |

When a person dies without a Last Will and Testament in Florida, he or she is said to have died “intestate.” The decedent’s estate is then distributed according to Florida’s intestacy statutes as set forth in Sections 732.101-732.111, Fla. Stat. In simplest terms, the intestacy statute provides a “pecking order” in which heirs of the decedent will inherit. For example, if a Florida resident dies intestate and has no living spouse, then the next in line are the deceased person’s children. But who qualifies as a “child” or “children” for the purposes of inheritance by intestate succession?

731.201(3) Fla. Stat. provides that:

“Child” includes a person entitled to take as a child under this code by intestate succession from the parent whose relationship is involved, and excludes any person who is only a stepchild, a foster child, a grandchild, or a more remote descendant.

An example can clarify. Tom and Judy are married and they have one child together. Her name is Samantha. Tom has one child from a prior marriage; his name is Kenneth. Judy has two children from a prior marriage; their names are Josh and Jane. Judy also had another child, Robert, who is deceased but who left a child of his own named Sally. Tom never adopted Josh, Jane, nor Robert and Judy never adopted Kenneth.

Tom and Judy have discussed their wishes with each other once they are both gone. Their intent is for Samantha, Kenneth, Josh, Judy and Sally (as Robert’s child) to all inherit equally once Tom and Judy are deceased. For purposes of their family, they consider all of the children to be “their” children.

Despite appeals from their attorney, Tom and Judy never got around to executing Wills. Judy dies first—intestate—and essentially all of the couple’s assets are titled jointly so they pass directly to Tom. Sadly, a few months later, Tom dies intestate, still not having heeded his lawyer’s advice to execute a Will. A probate is opened but who will inherit? Because Tom now owns all of the couple’s assets and because he died intestate, his estate will be distributed to his children in equal shares. Even though Tom and Judy considered all of the children as “their” children, for purposes of the intestacy statute, the assets will be distributed equally to Samantha and Kenneth. Josh, Jane, and Sally will get nothing since they are not Tom’s children; they are Tom’s step-children. Josh, Jane, and Sally are left out of the inheritance.

Despite Tom and Judy’s intentions, the intestacy statute makes it clear that children do not include stepchildren nor grandchildren. Therefore, for the purposes of distributing Tom’s estate, Josh and Jane, as step-children, and Sally, as a grandchild, are not entitled to receive anything. They are totally left out. For purposes of probate, a person’s intention means nothing if it is not contained in a duly executed written instrument such as a Will or Trust.

This example demonstrates the importance of having a Will and/or Trust in place. If Tom and Judy had done so, they could easily have provided for what they considered all of “their” children. Instead, three are left out entirely.


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