Intestate Succession In a Florida Probate Estate
ANSWER TO LEGAL MYSTERY MONDAY FOR AUGUST 17, 2015
It was a dark and stormy night…or some other setting of your choice, at which an unfortunate series of events leads to Bob’s death. Oh no! Betty, Bob’s trophy wife of six months, already dreads dealing with her bitter step-children but is relieved that by virtue of marriage, she will inherit everything. Bob, Jr. begs to differ, certain that because Bob, Sr. died without a will, he and his siblings will inherit everything. Will Bob, Jr. be able to shut Betty out of the estate? Will Betty run off to the Bahamas with Bob’s fortune and the handsome funeral director? Would a will make a difference? The answer to this and more, tomorrow…
Yet again, our pal, Bob, has created a legal dilemma for himself – actually for his family. If only he had consulted an attorney. The gist of the mystery really boils down to a simple question: what happens when someone dies without a will?
In Florida, when a person dies without a will, he or she is said to have died “intestate.” Along with the other states, Florida has adopted an intestate statute that governs what should happen to a decedent’s estate. Look to Florida Statutes, Chapter 732.
The analysis of the intestate succession law begins with exploring whether there was a spouse. Here, Bob has a spouse, Betty. It matters not that Bob married his young mistress only two weeks after his divorce from Judy, a devoted homemaker and the mother of his adult children. Under Florida’s law of intestate succession, Betty has priority over all others.
Bob, Jr. may not have much of an argument to strip Betty of any portion of the estate, but he and his siblings most definitely should follow the probate proceeding closely and enforce their rights. Florida Statutes, 732.102 (3) explains that if the decedent has lineal descendants (children) that are not common with the surviving spouse, the spouse only takes half of the estate. The other half of the estate goes to the spouse’s step-children. The same would be true if, nine-months later, we discover that Betty had a secret – Betty would get half and Bob, Jr. and his siblings, including their adorable new step-sibling, would split the other half. Florida Statutes 732.102 (4). If Betty goes overboard on the way to the Bahamas and is eaten by sharks, 732.102 would be skipped, and Florida Statutes 732.103 would control intestate distribution.
But Legal Mystery Monday presents the question: is a will necessary? It sure would save a lot of trouble, but other estate planning tools could also be utilized to prevent these sorts of family feuds. Estate planning, even the most basic last will and testament, is especially important when there’s been a divorce, remarriage, and step-children. In fact, in my family law practice, a dissolution of marriage case isn’t closed until I’m sure the client understands that he or she needs to revoke and/or rewrite any existing wills or trusts that leave everything to the ex-spouse, along with numerous other post-divorce “house keeping” issues.
As to other estate planning methods, for example, Bob could have avoided much of this posthumous turmoil by designating pay-to-on-death beneficiaries for all of his financial accounts. Those funds would by-pass probate and go directly from the financial institutions to the designated beneficiaries; the beneficiary could even be a trust.
But unfortunately, as we’ll discuss in a future Legal Mystery Monday, Bob used the Florida Family Law Forms and processed his divorce without consulting an attorney, so he had no idea that such simple steps were an option.
Call me so I can save time for your loved ones later on.