What Happens If You Die Without a Will in Florida?
No one likes to think about death. But if you pass away without a will in Florida, the state decides what happens to your assets, your property, and in some cases, your children. The legal term for dying without a will is intestacy, and Florida’s intestacy laws may not reflect your actual wishes.
At The Montilla Law Firm, P.A. in Orlando, Attorney Joel Montilla helps Florida families create estate plans that protect what matters most. Here’s what you need to know about dying without a will—and why creating one should be a priority.
How Florida’s Intestacy Laws Work
When someone dies without a valid will or trust in Florida, their estate goes through probate court. A judge applies Florida Statute §732.101-732.111 to determine who inherits your assets. You don’t get a say—the law decides for you.
The distribution depends on your surviving family members at the time of death.
If You’re Married With No Children
Your surviving spouse inherits everything.
If You’re Married With Children (All From the Same Marriage)
Your surviving spouse still inherits everything. Your children inherit after your spouse passes.
If You’re Married With Children From a Different Relationship
This is where it gets complicated—and where most families are surprised. Your surviving spouse receives one-half of your estate, and your children receive the other half. This applies whether the children are yours from a prior relationship or your spouse’s from a prior relationship.
This means your current spouse could lose the family home, savings, or other assets to a distribution they didn’t expect.
If You’re Single With Children
Your children inherit everything in equal shares. If a child has passed before you, their share goes to their children (your grandchildren).
If You Have No Spouse and No Children
Florida law looks to your next closest relatives in this order:
- Parents
- Siblings
- Nieces and nephews
- Extended family
If no relatives can be found, your assets go to the State of Florida (this is called “escheat”).
The Real-World Problems With Intestacy
Florida’s intestacy laws create a one-size-fits-all distribution that ignores your actual relationships and intentions. Here are common problems:
Your Partner Gets Nothing
If you’re in a long-term relationship but not legally married, your partner has no inheritance rights under Florida intestacy law. It doesn’t matter if you’ve lived together for 20 years.
Family Disputes
When there’s no will, disagreements about who gets what are common—and expensive. Probate litigation can drain the estate and damage family relationships permanently.
No Guardian for Your Children
Without a will naming a guardian, the court decides who raises your minor children. The judge may choose someone you wouldn’t have picked.
Delays and Costs
Intestate estates still go through probate, which in Florida can take 6 months to over a year. Attorney fees and court costs reduce what your family ultimately receives.
Your Favorite Charity or Friend Gets Nothing
Intestacy only distributes to legal relatives. If you wanted to leave something to a friend, church, charity, or organization, that wish goes unfulfilled without a will.
How a Will Protects Your Family
A valid Florida will lets you:
- Choose who inherits your home, savings, investments, and personal property
- Name a guardian for your minor children
- Appoint a personal representative (executor) you trust to manage your estate
- Minimize family conflict with clear, written instructions
- Include specific gifts to friends, organizations, or charities
A Trust Can Do Even More
While a will is essential, a revocable living trust can provide additional benefits:
- Avoids probate — your family gets assets faster and privately
- Protects against incapacity — a successor trustee can manage your affairs if you become unable to
- Provides ongoing control — you can set conditions on distributions (e.g., children receive funds at age 25)
Attorney Montilla helps Orlando families determine whether a will, a trust, or both best fits their situation. Learn more about Wills and Trusts →
Frequently Asked Questions
Is a handwritten will valid in Florida?
No. Florida does not recognize handwritten (holographic) wills. A valid Florida will must be in writing, signed by the testator, and witnessed by two people who also sign in the testator’s presence.
Can I write my own will without a lawyer?
Technically yes, but the risk of errors is high. Improperly executed wills are regularly challenged and invalidated in Florida probate courts. An experienced attorney ensures your will meets all legal requirements.
How often should I update my will?
Review your will every 3-5 years or after any major life event: marriage, divorce, birth of a child, death of a beneficiary, significant change in assets, or moving to Florida from another state.
Protect Your Family Today
Dying without a will in Florida means losing control over your legacy. The good news? Creating a will or estate plan is straightforward and affordable—especially compared to the cost of probate litigation.
Attorney Joel Montilla at The Montilla Law Firm, P.A. helps individuals and families throughout Orlando and Central Florida create personalized estate plans that protect their wishes and their loved ones.
📞 Call (407) 308-2386 to schedule a consultation
📱 Text (407) 308-2378
📧 Email: info@montillalaw.com
🌐 Schedule online →
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Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. Every situation is unique. Please consult with an attorney to discuss your specific circumstances.