Intestate Succession

What To Do When A Parent Passes Away

There is no telling when tragedy will strike. Given the recent events in Surfside, Florida, people are unfortunately experiencing troubling times with the loss of many loved ones. Such an incident could lead to many being uncertain as to what is to happen with the assets of loved ones who may have passed away as a result of the building collapse. There may be those who had Last Wills and Testaments and other estate planning documents prepared before their deaths, it is possible that there are those who have lost their lives without having an estate plan in place. The question then arises what happens to the assets of those without estate plans? This article will discuss what happens with someone’s assets after they pass away without having had a valid estate plan put in place before their death.

Homestead Property

The State of Florida likes to keep homestead property for the benefit of a family. So, it is good to know that there are certain benefits embedded into the homestead laws which safeguard people outside of the family from swooping in and kicking out certain family members from the homestead after a death. For instance, Florida law does not allow for someone to leave their homestead property in their Last Will and Testament to whomever they want in certain instances. In Florida, if you are survived by a spouse or minor children, you are prohibited from willing away your property to a third party. Furthermore, Florida law provides certain protections for surviving spouses when it comes to homestead property. A surviving spouse is entitled to inherit homestead property, but bear in mind that if there are any children from outside of a marital relationship, the surviving spouse may only be entitled to either an interest in the homestead property for his or her life or a 50% interest in the homestead. If you are concerned about how your homestead will pass after your death, you should speak with a qualified estate planning attorney as soon as possible.

Spouse Share

Florida law provides for what happens to someone’s assets when they are survived by a spouse. How the assets of the deceased person will pass, without a valid estate plan in place at the time of death, will depend on a few factors. For one, if the couple had signed a pre-nuptial agreement with terms outlining what would happen upon the death of one of the spouses, it is likely that that pre-nuptial agreement would control what happens to the deceased’s assets.

            Otherwise, in the instance where the deceased and surviving spouse did not have any children, the surviving spouse would be entitled to 100% of the deceased’s estate. The same rings true if the deceased and the surviving spouse had children together at the time of death – the surviving spouse would inherit the deceased’s entire estate. Things are different, however, in instances where the deceased and surviving spouse have children from outside of their relationship. In these instances, Section 732.102, Florida Statutes, states that the surviving spouse will only be entitled to 50% of the deceased’s estate, the remaining half to pass to the deceased’s heirs via Florida’s laws.

Intestate Succession

In Florida, when someone passes away without an estate plan in place, their assets will be distributed in accordance with the intestate succession laws. Generally speaking, Section 732.103, Florida Statutes, is home to Florida’s intestate line of succession. Assets which do not pass to a surviving spouse will pass accordingly:

  • To the descendants of the deceased;
  • If there are no descendants, to the parents of the deceased;
  • If there are no parents surviving the deceased, to the siblings of the deceased;
  • If there are no siblings of the deceased, to the surviving grandparents;
  • If there are no surviving grandparents, to aunts and uncles of the deceased;
  • If there are no surviving aunts and uncles, the law directs that the assets will pass to family members of the deceased’s last spouse; and
  • If all else fails, the assets will go to the State of Florida.

As you can see, Florida law goes through great lengths to make sure that someone inherits your assets and will only allow your assets to pass to the state if all other avenues have been exhausted. However, to safeguard the state from choosing where your assets go upon your death, it would be wise to have a valid estate plan in place as soon as possible.

Simultaneous Death

What happens when it is impossible to determine which one of your loved ones survived the other? Take the Surfside tragedy, for instance. It is likely to say that it would be very difficult, if not impossible, to determine if any of the Surfside victims passed away at different times. That being said, that would make it difficult to determine who a survivor is for inheritance purposes. Florida law has taken this into consideration with Section 732.601, Florida Statutes, also known as the Simultaneous Death Law. Under the Simultaneous Death Law, when dealing with at least two deceased persons, if you are unable to provide sufficient evidence that one survived the other, each is treated to have survived each other. The effect of this, say in the instance of a married couple, is that each spouse’s estates will split joint property equally and anything titled individually will remain in its owner’s estate.

Please note that with a valid estate plan, you can dictate the rules as to what it means for someone to survive you. For instance, you can state that for someone to qualify as surviving you, they would have had to have survived you for a certain amount of time. This is just one way to take control of your estate plan and how your assets pass upon your death. But, in order to accomplish the goals of such a technique, it is important to enlist the assistance of an estate planning attorney to help best guide your efforts.


Understanding that it is hard to predict what will happen to you in the future gives you more reason to ensure that you have a valid estate plan in place. By creating an estate plan, you are able to at least map out how your assets should be distributed upon your death – whenever that may be. A qualified estate planning attorney can help guide you to craft the best plan to accomplish your goals. If you have any questions or need assistance setting up your estate plan, we encourage you to give Stivers Law a call at 305-456-3255.

Author Bio

Justin Stivers is the founder and managing attorney of Stivers Law, an estate planning firm specializing in wills, probate, trust administration, and financial risk management services. Justin’s approach goes beyond just creating legal documents. From aligning investments with estate plans to ensuring comprehensive insurance coverage, he safeguards a client’s legacy from unforeseen circumstances. His commitment extends beyond individual transactions, fostering lifelong partnerships to provide ongoing support and guidance.

With an impressive track record, Justin is licensed by the Florida and the Tennessee State Bars. His professional portfolio boasts Series 65 registration as a Registered Investment Advisor, the Wealth Management Specialist™ designation, and a 2-15 License for Health, Life, and Annuities. His dedication to excellence has earned him positions like Board Member of the Estate Planning Council of Greater Miami, Business Eagle Member of the Florida Justice Association, and active membership in esteemed organizations like the American Academy of Estate Planning Attorneys.

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