What Are the Inheritance Rules in Florida? (w/Examples) + FAQs

Florida inheritance rules decide who gets a person’s property when they die, and the answer depends on whether the decedent left a valid will, who survives them, and whether the property is protected homestead. The rules live mostly in Florida Statutes Chapter 732, the probate process runs under Florida Statutes Chapter 733, and homestead protection comes from Article X, Section 4 of the Florida Constitution.

If someone dies without a will, the state uses intestate succession to pick heirs in a fixed order. If someone dies with a will, Florida still protects spouses through the 30% elective share, protects minor children through homestead rules, and protects pretermitted spouses and children who were left out by mistake.

Florida does not charge a state estate tax or inheritance tax, but the federal estate tax still applies to very large estates above the 2026 exemption of about $13.99 million per person, according to IRS Revenue Procedure guidance. A recent Caring.com 2024 Wills Survey found that only 32% of Americans have a will, which means most Florida estates pass under intestacy rules and create avoidable family disputes.

Here is what you will learn in this guide:

• ⚖️ How Florida’s intestate succession statute divides property when there is no will
• 🏠 How the homestead rule protects a surviving spouse and minor children from disinheritance
• 💍 How the elective share gives a surviving spouse at least 30% of the elective estate
• 👶 How pretermitted spouses, pretermitted children, and adopted children are treated
• 📑 How to open probate, handle creditor claims, and avoid the seven most common inheritance mistakes

Florida Inheritance Law at a Glance

Florida inheritance law is a mix of the state constitution, state statutes, and federal tax code. The main rulebook is Florida Statutes Chapter 732, which covers wills, intestate shares, elective share, homestead, exempt property, and family allowance. The probate court then applies Chapter 733 to appoint a personal representative, notify creditors, pay debts, and transfer title to heirs.

Florida law starts with one simple question: was the decedent domiciled in Florida at death? If yes, Florida law controls all personal property worldwide and all real property located in Florida. Real property in another state passes under that state’s law through an ancillary probate.

The state also protects three special classes of property that sit outside normal inheritance rules. These are homestead real property, exempt personal property worth up to $20,000 plus two vehicles, and a family allowance of up to $18,000 for the surviving spouse and lineal heirs. Each class passes ahead of creditor claims and before the rest of the estate is divided.

A common misconception is that a will controls everything. In reality, beneficiary designations on life insurance, IRAs, 401(k)s, and pay-on-death accounts override a will. Jointly titled property with right of survivorship also passes outside the will. The consequence is that many Floridians think their will plan is complete when half their assets actually pass by contract or by title.

Federal Law First: Estate and Gift Tax

Federal law sets the ceiling on how much wealth can pass tax-free at death. The Internal Revenue Code Section 2010 sets the unified credit, which for 2026 shelters about $13.99 million per person. A married couple using portability through Form 706 can shelter nearly $28 million combined.

The consequence of ignoring federal rules is a flat 40% estate tax on the amount above the exemption. A real-world example is Robert in Naples, who dies in 2026 with a $20 million estate and no surviving spouse, leaving roughly $2.4 million in federal estate tax after the exemption. A common misconception is that lifetime gifts escape the tax, when the gift and estate tax are unified and lifetime gifts over the annual exclusion reduce the death-time exemption dollar for dollar.

No Florida Estate or Inheritance Tax

Florida repealed its estate tax when the federal credit for state death taxes was eliminated in 2005. The Florida Department of Revenue confirms that no Florida estate tax return is required for decedents dying after December 31, 2004. Florida has never had an inheritance tax paid by heirs.

The consequence is that a Florida decedent’s beneficiaries keep 100% of the state-side transfer, unlike neighbors in states like Kentucky or Pennsylvania that still tax heirs. A mini-scenario is Maria in Miami, who inherits $500,000 from her aunt and pays zero Florida tax, though she may still owe income tax on inherited IRAs under the SECURE Act 10-year rule. A common misconception is that Florida heirs owe income tax on the inheritance itself, when in fact the IRS treats inheritances as non-taxable except for income in respect of a decedent.

Dying With a Valid Will (Testate Succession)

When a Florida resident dies with a valid will, the court follows the will’s instructions, subject to spouse and child protections. A valid Florida will under Section 732.502 must be written, signed by the testator, and witnessed by two people who sign in the testator’s presence and in each other’s presence. Florida recognizes electronic wills executed with qualified custodians after 2020.

A valid will lets the testator name a personal representative, choose guardians for minor children, and create trusts for beneficiaries. The consequence of an invalid will, such as one signed with only one witness, is total rejection and a forced intestate distribution. A common misconception is that holographic (handwritten, unwitnessed) wills are valid in Florida, but Section 732.502(2) rejects them unless they meet the full witness requirement.

Spouse Cannot Be Cut Out: The Elective Share

Florida gives a surviving spouse a non-waivable right to 30% of the elective estate under Section 732.2065. The elective estate is broader than the probate estate and includes revocable trust assets, POD accounts, joint accounts, and certain gifts made within one year of death, as listed in Section 732.2035.

The consequence of trying to cut a spouse out is that the spouse files an election within 6 months of notice of administration or 2 years of death, whichever is earlier. A named example is James in Jacksonville, who leaves his entire $2 million estate to his children from a first marriage and leaves nothing to his second wife, Linda. Linda files an elective share petition and receives $600,000 from the estate, trust, and POD accounts combined.

A common misconception is that a prenuptial or postnuptial agreement cannot waive the elective share, when in fact Section 732.702 allows a written waiver with fair disclosure. Another misconception is that the spouse must choose between the will and the election; the spouse gets the larger of the two.

Pretermitted Spouse and Pretermitted Child

A pretermitted spouse is a spouse the testator married after signing the will. Under Section 732.301, that spouse receives an intestate share unless the will provides for the spouse or expressly disinherits future spouses. A pretermitted child under Section 732.302 is a child born or adopted after the will was signed, who also receives an intestate share unless the omission was intentional.

The consequence is that updating a will after a marriage, birth, or adoption is critical to avoid an accidental inheritance. A named example is David in Tampa, who signed a will in 2015 leaving everything to his brother, then married Sofia in 2020, and then died in 2024 without updating the will. Sofia takes the intestate share as a pretermitted spouse, which is 50% of the probate estate because David had children from a prior relationship.

A common misconception is that simply re-writing a will revives an older one. Florida follows strict revocation rules in Section 732.505, and a revoked will is not automatically revived if the new will is later revoked.

Dying Without a Will (Intestate Succession)

When a Florida resident dies without a valid will, Florida Statutes Section 732.101 and Section 732.102 decide who inherits. Intestate succession only applies to the probate estate, not to jointly titled property, trust assets, or contract assets like life insurance.

The state prefers to keep property inside the family. The order begins with the surviving spouse and descendants, then moves to parents, then siblings, then more distant kin, and only reaches the state (escheat) when no relative within the statutory reach exists. Florida’s intestacy statute goes as far as descendants of grandparents and descendants of the decedent’s kindred of the last deceased spouse under Section 732.103.

A common misconception is that the state takes the estate if there is no will. Escheat under Section 732.107 is rare and only happens when no heirs can be found after a diligent search. Another misconception is that a long-term unmarried partner inherits by default; Florida does not recognize common-law marriage entered into after 1968, so an unmarried partner receives nothing under intestacy.

Surviving Spouse’s Share

The spouse’s intestate share depends on the family tree. Under Section 732.102, the spouse takes the entire probate estate if there are no descendants, or if all descendants are the joint descendants of the decedent and the surviving spouse and the spouse has no other descendants.

The share drops to 50% if the decedent has descendants who are not descendants of the surviving spouse, or if the surviving spouse has descendants who are not descendants of the decedent. This 50-50 rule was added in 2011 to protect children from prior relationships in blended families. A named example is Patricia in Orlando, who dies intestate with $400,000, leaving husband Mark and one child from a prior marriage; Mark receives $200,000 and the child receives $200,000.

A common misconception is that the spouse always receives the first $60,000 plus half, which was the old rule before the 2011 amendment. That rule no longer applies, and any estate plan written under the old assumption will produce the wrong result.

Descendants, Per Stirpes Distribution

Descendants inherit per stirpes, meaning each branch of the family takes an equal share, and deceased descendants are represented by their own descendants. Section 732.104 sets this rule.

The consequence is that a predeceased child’s share passes to that child’s children, not to the decedent’s surviving children. A mini-scenario is Grandpa George in Sarasota, who dies with three children, one of whom (Amy) died before him leaving two kids of her own. George’s estate splits into three equal branches, and Amy’s two children share her one-third branch equally.

A common misconception is that grandchildren inherit alongside their living aunts and uncles. Under per stirpes, grandchildren only inherit if their parent (the decedent’s child) is deceased.

When There Are No Spouse or Descendants

If there is no spouse and no descendants, Section 732.103 sends the estate to the decedent’s parents equally, or to the survivor. If no parent survives, the estate goes to the decedent’s brothers and sisters and the descendants of deceased siblings, again per stirpes.

The ladder continues to grandparents, then to uncles and aunts and their descendants, and finally to the kindred of the last deceased spouse of the decedent. A named example is Henry in Fort Lauderdale, who dies single with no children and no parents, survived by one sister and two nieces from a predeceased brother; his sister receives half and the nieces split the other half.

A common misconception is that stepchildren inherit. Florida does not treat stepchildren as intestate heirs unless legally adopted, which Section 732.108 equates with biological children for inheritance purposes.

Homestead: Florida’s Unique Protection

Homestead is the most powerful, and most misunderstood, rule in Florida inheritance law. Article X, Section 4 of the Florida Constitution protects a homestead from forced sale by most creditors and restricts how the owner can devise (give by will) the property if survived by a spouse or minor child.

The consequence of ignoring homestead rules is that an invalid devise is simply rewritten by the court. If a decedent devises homestead in violation of the rules, Section 732.401 gives the surviving spouse a life estate with a vested remainder in the decedent’s descendants per stirpes, or at the spouse’s election, an undivided one-half tenant-in-common interest with the descendants.

A common misconception is that homestead means a “homestead exemption” for property taxes only. The constitutional homestead has three separate protections: creditor protection, tax exemption, and devise/descent restrictions. All three apply to the same parcel but serve different purposes.

Devise Restrictions on Homestead

A Florida homeowner cannot leave homestead to anyone other than a surviving spouse if survived by a spouse or minor child. If the owner has no minor child and the spouse signs a proper waiver, the owner can devise the homestead freely. The waiver must comply with Section 732.702.

The consequence of a bad devise is automatic reformation by the probate court. A named example is Rosa in Coral Gables, who leaves her $600,000 homestead to her adult son and nothing to her husband Carlos. Because Rosa had no minor child, and Carlos did not waive his rights, Carlos receives a life estate with the son holding the remainder, or Carlos can elect a 50% tenant-in-common share.

A common misconception is that placing homestead in a revocable trust avoids these rules. The Florida Supreme Court in Engelke v. Estate of Engelke and later cases confirm that homestead restrictions follow the property into a revocable trust.

Probate Process in Florida

Probate is the court-supervised process of transferring a decedent’s assets. Florida Statutes Chapter 733 governs formal administration, while Chapter 735 covers summary administration for small estates and estates where the decedent has been dead more than two years.

The process begins when someone files the original will and a petition for administration in the county where the decedent was domiciled. The court issues letters of administration to the personal representative, who then marshals assets, publishes a notice to creditors, pays valid claims, files tax returns, and distributes the remainder to heirs.

A common misconception is that probate always takes years. Summary administration under Section 735.201 can close an estate worth under $75,000 (excluding homestead) in a few weeks. Formal administration usually takes 6 to 12 months.

Formal Administration Timeline

Formal administration is required when the estate exceeds $75,000 in non-exempt probate assets or when the decedent died within the last two years. The personal representative must be a Florida resident or a close relative of the decedent under Section 733.304.

The creditor claim period runs 3 months from the first publication of notice, or 30 days from service of notice on a reasonably ascertainable creditor. A real-world example is Thomas in Tallahassee, who serves as personal representative for his mother’s estate, publishes notice in April 2026, and closes the claim window in July 2026, then files a petition for discharge after paying all valid claims.

A common misconception is that the personal representative can distribute assets early. Early distribution before the creditor period ends exposes the personal representative to personal liability for unpaid claims.

Summary Administration and Disposition Without Administration

Summary administration fits estates with under $75,000 in non-exempt assets or where more than 2 years have passed since death. Disposition without administration, under Section 735.301, applies when only exempt property and final medical and funeral expenses are involved.

The consequence of using the wrong process is dismissal and wasted filing fees. A mini-scenario is Grace in St. Petersburg, whose late husband left a $40,000 bank account and a paid-off car. Grace uses summary administration, saves thousands in legal fees, and receives a court order transferring the account within weeks.

A common misconception is that summary administration avoids creditor claims. Claims still apply, but Section 735.206 requires the petitioner to make reasonable effort to serve known creditors before distribution.

Three Common Inheritance Scenarios

Real families face predictable patterns. The tables below show the three most common Florida inheritance scenarios and the legal outcome for each.

Scenario 1: Married With Children From Prior Relationship

Family Situation	Inheritance Outcome
Decedent dies intestate, survived by spouse and two children from a prior marriage	Spouse gets 50% per Section 732.102; children split 50% equally
Decedent owns homestead in sole name, no waiver signed	Spouse gets life estate or elects 50% tenant-in-common under Section 732.401
Joint bank account with spouse	Passes 100% to spouse outside probate by right of survivorship
401(k) naming the children as beneficiaries	Passes 100% to children outside probate under the beneficiary designation

Scenario 2: Single With No Children

Family Situation	Inheritance Outcome
Decedent dies intestate, survived by both parents	Parents take 100% equally under Section 732.103
Decedent dies intestate, survived by one parent and two siblings	Parent takes 100%; siblings take nothing
Decedent dies intestate, no parents, survived by two siblings and niece (deceased sibling’s child)	Siblings split two-thirds; niece takes one-third per stirpes
Long-term unmarried partner	Takes nothing under intestacy; only through valid will or beneficiary designation

Scenario 3: Married With Joint Children Only

Family Situation	Inheritance Outcome
Decedent dies intestate, survived by spouse and two joint children	Spouse takes 100% of probate estate under Section 732.102
Homestead in sole name of decedent	Spouse can take fee simple if no minor child; otherwise life estate applies
Life insurance naming spouse as beneficiary	Passes 100% to spouse outside probate
IRA naming children as contingent, spouse as primary	Passes to spouse; children only receive if spouse disclaims under Section 739.201

Exempt Property and Family Allowance

Beyond homestead, Florida protects a surviving spouse and minor children through two more tools. Exempt property includes household furniture and appliances up to $20,000 in value, two motor vehicles used regularly, all qualified tuition program funds, and certain teacher death benefits.

The family allowance is a cash award of up to $18,000 paid from the estate to the surviving spouse and lineal heirs the decedent was supporting. It is paid before creditor claims and is in addition to any share the spouse or children receive under the will or intestacy.

A common misconception is that these protections are automatic. The personal representative or the spouse must file a petition to set aside exempt property and request family allowance within 4 months of notice of administration under Section 732.402(6). Missing the deadline waives the right.

Non-Probate Transfers That Override the Will

Many assets pass outside probate by contract or by title. Life insurance and annuities pass to the named beneficiary. Retirement accounts like IRAs and 401(k)s pass under the plan beneficiary designation, often governed by ERISA. Pay-on-death (POD) and transfer-on-death (TOD) accounts pass automatically.

Jointly titled property with right of survivorship passes to the survivor. A Florida revocable living trust holds assets that pass under the trust’s terms, not the will. A Lady Bird deed (enhanced life estate deed) passes real property automatically without probate.

A common misconception is that the most recent will controls retirement accounts. The U.S. Supreme Court in Egelhoff v. Egelhoff confirmed that ERISA plan documents, not state probate law, control the payout, even if the named beneficiary is an ex-spouse.

Mistakes to Avoid in Florida Inheritance Planning

Small errors can rewrite a decades-long plan. Watch for these seven mistakes at a minimum.

• Failing to update the will after marriage, divorce, birth, or adoption, which triggers pretermitted spouse or child claims under Section 732.301.
• Devising homestead to someone other than the spouse without a valid waiver, which results in automatic reformation and a forced life estate.
• Naming a minor as a direct beneficiary of life insurance or a retirement account, which forces a court-supervised guardianship of the property.
• Forgetting to fund a revocable trust by leaving assets titled in the decedent’s individual name, which pulls those assets back into probate.
• Using a out-of-state will that does not meet Florida’s two-witness rule, which forces intestacy if the foreign will is invalid under Section 732.502.
• Relying on a joint account for convenience with one child, which creates an unintended gift to that child alone and cuts out other children.
• Missing the elective share filing deadline, which is 6 months from notice of administration or 2 years from death, whichever comes first.
• Naming an ex-spouse on a beneficiary form after divorce, which under Section 732.703 is voided for probate assets but may still control ERISA assets.
• Assuming a handwritten note qualifies as a codicil, when Florida rejects holographic documents without proper witnessing.

Do’s and Don’ts for Florida Heirs and Testators

These actions protect a Florida estate plan and the people it is meant to serve.

• Do sign your will in the presence of two witnesses and a notary, to qualify as a self-proving will under Section 732.503, because it skips witness testimony in probate.
• Do review beneficiary designations every 3 years, because divorce, remarriage, or death of a beneficiary can silently redirect assets.
• Do record a Lady Bird deed if you want to keep homestead out of probate, because it avoids ancillary proceedings and preserves the step-up in basis.
• Do keep an original will in a safe but accessible place, because a lost will creates a rebuttable presumption of revocation.

• Do disclose all assets to your spouse if asking for an elective share waiver, because non-disclosure voids the waiver under Section 732.702(2).

• Don’t DIY a will with an online form that does not meet Florida’s witness rules, because invalid wills force intestacy.

• Don’t name your estate as the beneficiary of a retirement account, because it accelerates income tax and forfeits stretch options.
• Don’t forget to plan for digital assets, because Florida’s Fiduciary Access to Digital Assets Act requires explicit authority.
• Don’t assume a prenup automatically waives homestead rights, because the waiver must meet specific disclosure standards.
• Don’t distribute assets to heirs before the creditor period closes, because the personal representative is personally liable for unpaid claims.

Pros and Cons of Dying Intestate in Florida

Some families are fine with the default rules. Others suffer unexpected consequences. Weigh both sides before skipping estate planning.

• Pro: No lawyer fees for drafting, which saves a few hundred to a few thousand dollars upfront.
• Pro: Statutory rules are predictable if the family tree is simple, such as a spouse with only joint children.
• Pro: No contested will litigation, because there is no document to challenge for undue influence or capacity.
• Pro: Homestead still passes to the spouse and children automatically, regardless of any will.

• Pro: Small estates under $75,000 can use summary administration, which is quick and affordable.

• Con: Blended families lose control; a 50-50 split between spouse and children from prior marriages often leaves the spouse with too little to keep the home.

• Con: Minor children inherit outright at age 18, which rarely matches a parent’s wishes.
• Con: Unmarried partners receive nothing, which can force the partner out of a shared home.
• Con: Charities, friends, and stepchildren receive nothing unless named in a will.
• Con: The personal representative is chosen by statute, not by the family, which can create conflict.

Named Examples: Three Florida Families

Maria in Miami is 72, widowed, and owns a $500,000 condo, a $300,000 IRA, and a $50,000 bank account. She dies without a will, leaving two adult children. Her IRA passes to the children by beneficiary designation. Her condo, as homestead, passes to the children as her only descendants free of creditor claims. Her bank account passes through intestacy equally to the two children.

James and Linda in Jacksonville are a second marriage. James has two adult children from his first marriage and owns a $1.2 million home, a $400,000 brokerage account, and a $300,000 life insurance policy naming his first wife (now deceased) as beneficiary. James dies without updating anything. Linda takes a life estate in the home under homestead rules, elects 30% of the elective estate, and the life insurance falls to James’s estate because the named beneficiary predeceased him, eventually flowing through intestacy.

David in Tampa signed a will in 2015 leaving everything to his brother, then married Sofia in 2020, then had a child with Sofia in 2022. David dies in 2026 without updating his will. Sofia takes a pretermitted spouse share under Section 732.301, and the child takes a pretermitted child share under Section 732.302, overriding the will’s gift to the brother.

Key Entities in Florida Inheritance Law

The Florida Legislature writes the probate code and amends it regularly. The Florida Bar Real Property, Probate and Trust Law Section drafts model provisions and comments on case law. The Florida Probate Rules Committee of the Florida Bar maintains the procedural rules that work alongside Chapter 733.

The circuit court probate division in each county supervises administration and resolves disputes. The personal representative is the fiduciary appointed to manage the estate, formerly called an executor. The Internal Revenue Service collects federal estate and gift tax, and the Florida Department of Revenue confirms no state estate tax is owed.

Recap of Key Florida Cases

Florida courts shape inheritance law through published opinions. Snyder v. Davis, 699 So. 2d 999 (Fla. 1997), held that a grandchild could inherit protected homestead from grandparents, reading the devise restrictions narrowly in favor of family heirs.

Sheffield v. Barry, 194 So. 614 (Fla. 1940), established that homestead passes outside the probate estate and is not subject to creditor claims except for taxes, mortgages, and mechanics’ liens. Cutler v. Cutler, 994 So. 2d 341 (Fla. 3d DCA 2008), confirmed that homestead restrictions follow the property into a revocable trust, defeating common planning attempts to sidestep the rules.

Frequently Asked Questions

Does Florida have an inheritance tax?

No. Florida has no state inheritance tax and no state estate tax. Beneficiaries keep 100% of the Florida-side transfer, though federal estate tax may apply to estates over $13.99 million in 2026.

Can a spouse be disinherited in Florida?

No. A surviving spouse cannot be cut out entirely. Florida guarantees a 30% elective share of the elective estate, homestead rights, exempt property, and family allowance, unless the spouse signed a valid waiver.

Do stepchildren inherit under Florida intestacy?

No. Stepchildren do not inherit unless legally adopted by the decedent. Adoption gives a child full intestate rights as a biological child under Florida Statutes Section 732.108.

Is a handwritten will valid in Florida?

No. Florida rejects holographic wills unless they are signed by the testator and two witnesses who sign in each other’s presence. A handwritten but unwitnessed will fails completely.

Does an unmarried partner inherit in Florida?

No. Florida does not recognize common-law marriage entered into after 1968. An unmarried partner inherits only through a valid will, trust, beneficiary designation, or joint title with right of survivorship.

Can homestead be left to anyone in a will?

No. If survived by a spouse or minor child, the owner cannot devise homestead except to the spouse. Invalid devises are rewritten by the court into a life estate or tenant-in-common share.

Does a Florida will need to be notarized?

No. Notarization is not required for validity, but a notarized self-proving affidavit is strongly recommended. A self-proving will avoids calling witnesses during probate under Section 732.503.

Do life insurance proceeds go through probate in Florida?

No. Life insurance passes directly to the named beneficiary outside probate. Only if the estate is named as beneficiary, or if all named beneficiaries predecease, do the proceeds fall into the probate estate.

Can a creditor take a Florida homestead from heirs?

No. Florida’s constitutional homestead protection follows the property to the spouse and heirs, shielding it from most creditor claims even after the owner’s death, except for taxes, mortgages, and construction liens.

Is probate always required in Florida?

No. Small estates under $75,000 in non-exempt assets, or estates where more than two years have passed since death, can use summary administration. Some assets, like jointly titled property and beneficiary-designated accounts, avoid probate entirely.

Can an ex-spouse inherit in Florida?

No. Florida Statutes Section 732.507 voids gifts to a former spouse in a will after divorce, unless the will expressly states otherwise. Divorce also voids most beneficiary designations on non-ERISA accounts under Section 732.703.

Does a Florida will from another state work here?

Yes. A will valid where it was executed is generally valid in Florida under Section 732.502(2), but it should be reviewed by a Florida lawyer to confirm witness compliance and to add a self-proving affidavit.

Can minor children inherit directly in Florida?

No. Minors cannot own property outright beyond $15,000 without a court-appointed guardian. Parents should use a testamentary trust, a UTMA account, or a revocable trust to avoid expensive guardianship proceedings.

Does Florida recognize electronic wills?

Yes. Florida has allowed electronic wills since January 2020 under Section 732.522, provided a qualified custodian maintains the document and the remote online notarization rules are followed.

How long does probate take in Florida?

No single timeline fits every case. Summary administration can finish in 4 to 8 weeks. Formal administration typically runs 6 to 12 months, and contested estates can take 2 or more years to close.