One of the most common misconceptions I hear: "If I die without a will, the state takes everything."
That's not true — but the real answer isn't much more reassuring.
If you die without a will in Florida, the state doesn't take your assets. Instead, Florida law decides who gets them. The legal term for this is dying intestate, and it follows a rigid formula that has nothing to do with your relationships, your wishes, or your family's actual circumstances.
Here's how it works.
Florida's Intestacy Laws: The Basics
Florida's intestacy statute (Chapter 732 of the Florida Statutes) establishes a default inheritance hierarchy. The people who inherit — and how much they receive — depends on who survives you.
If You're Married with No Children
Your spouse inherits everything.
If You're Married with Children (All from Your Current Marriage)
Your spouse inherits everything, assuming the children are also the spouse's children.
If You're Married with Children from a Prior Relationship
This is where it gets complicated — and where intestacy most often produces outcomes families didn't intend.
If you have children from outside your current marriage, your spouse and your children split your estate:
- Your spouse receives 50%
- Your descendants receive 50%, split equally among them
This applies even if your children are adults, even if you're estranged from them, and even if you and your spouse had always intended for everything to go to each other first.
If You're Not Married
Assets pass to your descendants (children, then grandchildren). If there are none, to your parents. If your parents are deceased, to your siblings and their descendants.
If You Have No Surviving Relatives
Only if there are truly no surviving relatives does the state (Florida) receive your assets — a situation called escheat, which is exceedingly rare.
What Intestacy Doesn't Cover
Even if the distribution feels acceptable to you, intestacy leaves several important things unresolved.
No guardian designation. If you have minor children and you die intestate, a court decides who raises them. You get no say. Even the "obvious" choice — your sister, your mother, your best friend — isn't guaranteed. Anyone can petition, and a judge determines what's in the children's best interests without your input.
No trustee or management of assets. If minor children inherit, Florida law requires a court-supervised guardianship of the property. A guardian is appointed to manage the funds, court oversight is ongoing, and the children receive everything outright at age 18.
No control over timing or conditions. With intestacy, your 21-year-old gets their inheritance immediately, with no conditions on how it's used.
No protection for people outside the formula. A longtime partner who wasn't legally your spouse. A stepchild you raised as your own but never legally adopted. A close friend. A charity. Intestacy doesn't know any of them exist.
The Bigger Picture: It's Not Just About the Will
A will prevents intestacy — but it's not the complete solution either. A will still goes through probate in Florida, which takes time and costs money. And for families with young children, a will alone doesn't prevent a court-supervised guardianship of their inheritance.
A comprehensive Florida estate plan includes a will for the guardianship designation, a revocable living trust to avoid probate and protect assets, and the supporting documents (power of attorney, healthcare surrogate, living will) that protect you if you're incapacitated but still alive.
A Will Is the Floor, Not the Ceiling
If you've been putting off estate planning because it feels distant or morbid, consider this: intestacy is what happens when you leave the decision to the state. The question isn't whether your estate will be distributed — it's whether you'll be the one who decided how.
Schedule a consultation to put a plan in place that actually reflects your family and your wishes.