- Introduction
Florida Next of Kin Law outlines the process for determining who is legally entitled to inherit property or assets from a deceased individual who did not have a will. This law is an important aspect of estate planning and understanding your inheritance rights in the state of Florida.
When a person passes away without a will, the next of kin law is used to determine the order of inheritance for individuals who are related to the deceased, such as spouses, children, and siblings. It is important to understand this law to ensure that your rights are protected and to avoid any confusion or disputes during the inheritance process. This is also called the law of intestacy in Florida.
In this blog post, we will provide an overview of the Florida Next of Kin Law (the rules of intestacy), including the order of inheritance, the effect of a will on inheritance, and variations based on asset type. By the end of this post, you will have a better understanding of the provisions of the law and how they may impact your inheritance.
- Order of Succession Under Florida Law
Under Florida law, the next of kin law determines the order of inheritance for individuals who are related to the deceased. The following outlines the order of inheritance:
A. Spouses as first in line: If the deceased was married, their spouse is the first in line to inherit their assets. This includes both real and personal property, as well as any other assets that may not have been specifically listed in a will.
B. Children as next in line: If the deceased was not married, their children would be next in line to inherit their assets. If the deceased had more than one child, the assets would be divided equally among them.
C. Siblings, parents, and grandparents in succession: If the deceased did not have any children, their siblings would be next in line to inherit their assets. If there are no living siblings, the assets would pass to the deceased’s parents. If the deceased did not have any living parents, the assets would pass to their grandparents.
Here are the relevant statutes:
732.102 Spouse’s share of intestate estate.—The intestate share of the surviving spouse is:
(1) If there is no surviving descendant of the decedent, the entire intestate estate.
(2) If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the entire intestate estate.
(3) If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, one-half of the intestate estate.
(4) If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, one-half of the intestate estate.
732.103 Share of other heirs.—The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows:
(1) To the descendants of the decedent.
(2) If there is no descendant, to the decedent’s father and mother equally, or to the survivor of them.
(3) If there is none of the foregoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.
(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order:
(a) To the grandfather and grandmother equally, or to the survivor of them.
(b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
(c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
(5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.
(6) If none of the foregoing, and if any of the descendants of the decedent’s great-grandparents were Holocaust victims as defined in s. 626.9543(3)(a), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the descendants of the great-grandparents. The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004.
So the first line of analysis is the spousal share and then a determination can be made as to next line of lineal descendants. Sometimes this is very easy and sometimes can be complicated depending on the family. Tree.
Per Stirpes Distribution:
Per stirpes distribution is a method of inheritance that ensures that a deceased person’s property is distributed among their descendants in a specific manner. The term “per stirpes” comes from the Latin phrase “per stirpes et per capita,” which means “by roots and by head.”
Under a per stirpes distribution system, property is passed down to the deceased person’s children, and if a child is no longer alive, their share of the inheritance is passed down to their descendants. This ensures that the deceased’s property is distributed among their descendants, rather than being absorbed into the estate of the surviving spouse or other relatives.
For example, let’s say a deceased person has two children, A and B, and A has two children, C and D. Under a per stirpes distribution system, each of the deceased person’s children would receive a share of the inheritance, and if one of the children (e.g. A) was no longer alive, their share would be divided among their children (C and D).
Another example, a deceased person has three children, A, B, and C, and B has passed away but had two children, D and E. Under a per stirpes distribution system, each of the three children of the deceased would receive a share of the inheritance, and if one of the children (e.g. B) was no longer alive, their share would be divided among their children (D and E).
Per stirpes distribution is a method of inheritance that ensures that the deceased person’s property is distributed among their descendants in a manner that reflects their wishes and provides for their family.
- The Effect of a Will on Inheritance
The next of kin law provides a default order of inheritance when a person dies without a will, but if a person has a valid will in place, the provisions of the will take precedence over the next of kin law.
The will takes precedence over the next of kin law: When a person has a will in place, the assets listed in the will are distributed according to the instructions provided by the deceased. This means that even if a person is related to the deceased and would otherwise be next in line to inherit under the next of kin law, if the deceased’s will does not name them as a beneficiary, they will not receive a share of the assets. The major exception to that rule are the two protected classes, minor children and spouses who at minimum must receive a certain portion of an estate in Florida.
The individuals named in the will as beneficiaries would inherit the assets listed in the will. The assets would be distributed according to the instructions provided in the will, regardless of the provisions of the next of kin law.
It is important to note that a will must meet certain legal requirements in order to be considered valid, and any errors or omissions in the will may impact its effectiveness. An estate planning attorney can provide guidance on the process of creating a will and ensure that your wishes are reflected in the document.
Having a will in place can provide peace of mind and ensure that your assets are distributed according to your wishes after you pass away. It is an important aspect of estate planning and should be considered as part of a comprehensive plan for your future.
- Variations Based on Asset Type
The distribution of assets after a person’s death can vary based on the type of assets involved. In Florida, different types of assets are subject to different rules and requirements, and it is important to understand these differences in order to ensure that your assets are distributed according to your wishes.
- Real Property: Real property, such as a home or land, is subject to the provisions of the next of kin law and the provisions of any will that may be in place. If a person dies without a will, their real property will be distributed among their next of kin according to the order specified in the next of kin law with special rules for Property that is Homestead.
732.401 Descent of homestead.—
(1) If not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes.
(2) In lieu of a life estate under subsection (1), the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes.
732.4015 Devise of homestead.—
(1) As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or a minor child or minor children, except that the homestead may be devised to the owner’s spouse if there is no minor child or minor children.
(2) For the purposes of subsection (1), the term:
(a) “Owner” includes the grantor of a trust described in s. 733.707(3) that is evidenced by a written instrument which is in existence at the time of the grantor’s death as if the interest held in trust was owned by the grantor.
(b) “Devise” includes a disposition by trust of that portion of the trust estate which, if titled in the name of the grantor of the trust, would be the grantor’s homestead.
(3) If an interest in homestead has been devised to the surviving spouse as authorized by law and the constitution, and the surviving spouse’s interest is disclaimed, the disclaimed interest shall pass in accordance with chapter 739.
So your Homestead if you have a spouse or minor child must go to the spouse or minor children. Also if your spouse is not on title he/she will get a life estate or can take a ½ Interest. Homestead is a one of the most complicated areas of Probate law and is unique to Florida. Make sure you consult with an experienced Probate attorney to determine your rights as to this asset!
B. Bank Accounts: Bank accounts are generally subject to the provisions of the next of kin law, and if a person dies without a will, their bank accounts will be distributed among their next of kin according to the order specified in the next of kin law. However, if a person has a payable-on-death (POD) designation in place, the funds in the account will be paid directly to the designated beneficiary, regardless of the provisions of the next of kin law or the provisions of any will.
C. Retirement Accounts: Retirement accounts, such as a 401(k) or an IRA, are subject to specific rules and requirements, and it is important to understand these rules in order to ensure that your retirement assets are distributed according to your wishes. In general, retirement accounts are distributed to the beneficiaries specified in the account, and if a person dies without a will, their retirement assets will be distributed among their next of kin according to the order specified in the next of kin law.
D. Life Insurance: Life insurance policies are generally subject to the provisions of the next of kin law, and if a person dies without a will, their life insurance benefits will be paid to their next of kin according to the order specified in the next of kin law. However, if a person has a beneficiary designation in place, the life insurance benefits will be paid directly to the designated beneficiary, regardless of the provisions of the next of kin law or the provisions of any will.
It is important to understand the variations in asset distribution based on the type of asset involved, and to work with an estate planning attorney to ensure that your assets are distributed according to your wishes after you pass away.
V. Conclusion
The Florida next of kin law provides the framework for the distribution of a person’s assets after they pass away, in the absence of a will. The law specifies the order in which a person’s assets will be distributed among their next of kin, with priority given to spouses, children, and other close relatives.
Estate planning is an important aspect of financial planning, and can help ensure that a person’s assets are distributed according to their wishes after they pass away. Estate planning can help protect assets, provide for loved ones, avoid probate, and minimize taxes, and should be considered as part of a comprehensive plan for the future. Knowing the default next of kin rules is the backdrop from which estate planning should be crafted.
It is also important to understand the variations in asset distribution based on the type of asset involved, as different types of assets are subject to different rules and requirements. An estate planning attorney can provide guidance and help ensure that a person’s wishes are reflected in their estate plan.
In conclusion, the Florida next of kin law provides a framework for the distribution of assets, but estate planning is necessary to ensure that a person’s assets are distributed according to their wishes. Understanding the variations based on asset type and working with an experienced estate planning and Probate attorney can help ensure that your family’s assets are protected.
Our office has administered hundreds of Estates throughout Florida with the mission to make these complicated issues accessible. If you have questions, we would love to hear from you. Our attorneys offer free, no obligation consultations throughout the state.
-Brice Zoecklein, Esq.
Disclaimer: The information contained in this blog/website is for informational purposes only and provides general information about the law but not specific advice. This information should not be used as a substitute for advice from competent legal counsel as laws change and the facts in your specific case need to be analyzed.
