Intestacy in the Context of Estate Planning in Florida: When to Apply the Intestacy Rules and How to Avoid them
Florida intestacy laws address certain basic estate planning issues involving rights of spouses and children and distributional schemes for intestate succession. In most cases, intestacy is not a preferred planning device. In general, it is a default mechanism provided by the legislature that applies to the extent a testator has not mandated his or her intent in a manner enforceable under probate law. In some cases, however, there is no choice but intestacy because of lack of capacity or restriction on the right to devise specific property. In most cases, however, a testator may apply the rules in a testate setting or may substitute new rules and intent by will or other document. Nevertheless, knowledge of the rules of intestate succession and the issues raised by these rules is essential to the estate planning process and in understanding a client’s choices when drafting wills. This article will summarize the general and special rules of intestacy, as amended effective January 1, 2002, and discuss when to apply these rules and when and how to avoid them.1
The general rules of intestacy provide for two tiers of beneficiaries: The first tier includes the surviving spouse and lineal descendants and the second tier includes the intestate’s ascendants and collateral relatives and relatives of a deceased spouse.2
• First Tier. The surviving spouse will receive between 100 and 50 percent of the intestate estate depending on whether the intestate is survived by any descendants, such as children or grandchildren. If there are no surviving lineal descendants, the surviving spouse will receive all of the intestate estate. If there are any surviving lineal descendants of the intestate and they all are descendants of the surviving spouse also, the spouse will receive the first $60,000 and one-half of the balance of the intestate estate, with the lineal descendants receiving the remaining balance, per stirpes. If there is a lineal descendant who is not a descendant of the surviving spouse, the surviving spouse will receive only one-half of the intestate estate, with the lineal descendants receiving the other half, per stirpes. If there are descendants but no surviving spouse, the descendants will receive the intestate estate, per stirpes. When making per stirpital distributions, Florida applies a strict per stirpes distribution, making the equal division at the children’s level, even if there are no surviving children. Thus, if an intestate is survived by three grandchildren, one from a deceased son and two from a deceased daughter, the son’s child will receive one-half of the intestate estate, while the daughter’s children will receive one-fourth each.
• Second Tier. If there is no surviving spouse or descendant, the intestate estate descends to the intestate’s parents, in equal shares, or to the survivor, if only one survives; but if none, then to the intestate’s brothers and sisters, with the share of a deceased sibling passing to his or her descendants, per stirpes.
If there is no surviving parent, sibling, or descendant of a deceased sibling, the intestate estate will be divided into two equal shares between the intestate’s maternal and paternal kindred. Each maternal or paternal share is distributed first to the surviving grandparents of that side, then to surviving uncles, aunts, and descendants of deceased uncles and aunts on that side.
If there are surviving heirs on one side, but not both sides, the intestate estate will pass to that side. If none of these heirs survive and the decedent was married but the spouse died first, the intestate estate will pass to the kindred heirs of the predeceased spouse, determined immediately after the intestate’s death. In the event none of these heirs survive, the intestate estate will escheat to the State of Florida.
Special Rules of Intestacy
• Adopted Heirs. When applying the rules of intestacy, adopted children or descendants generally are treated as lineal descendants of their adoptive parents and not of their birth parents and as members of their adoptive parents’ family and not of their birth family with limited exceptions. One exception is that if one parent dies and the surviving parent marries a person who adopts the child, the child remains a member of the families of the deceased parent and the surviving parent and also becomes a member of the family of the adoptive parent. Another exception is that if a child is adopted by a close relative (the child’s brother, sister, grandparent, aunt, or uncle) after the deaths of both parents, the child is treated as a child of the adopting close relative as well as a member of the deceased parents’ families. These intestate rules apply to wills to determine whether an adopted person is included in a class gift or a term of relationship in the will unless the will indicates a contrary intent.3
• Heirs Born Out of Wedlock. If a child born to unmarried parents is adopted, the adoption rules apply to establish the child’s parents. Otherwise, for purposes of intestacy, a child who is born to parents who are not lawfully married is considered a lineal descendant of the child’s mother and a member of the mother’s family. Further, a man is treated as the child’s father if 1) the man and the child’s mother participated in a marriage ceremony before or after the child’s birth, even if the attempted marriage was void; 2) the father acknowledged paternity in writing; or 3) paternity is adjudicated before or after the father’s death. These intestate rules apply to wills to determine whether a person who was born out of wedlock is included in a class gift or a term of relationship in the will unless the will indicates a contrary intent.4
• Half-blood and Whole-blood Collateral Relatives. The intestacy rules provide for unequal distribution among collateral relatives when at least one collateral is related to the intestate by the whole-blood and at least one is related by the half-blood. In general, relatives are half- or whole-blood depending on whether they have one or two ancestors in common. Thus, siblings are related by whole-blood when they have the same parents and by half-blood when they have only one parent in common. If there are half-blood and whole-blood relatives, the half-blood relatives receive only half the share the whole-blood relatives receive. For example, if a child dies intestate survived by one brother, born to the intestate’s parents, and one sister born to the intestate’s mother but not the intestate’s father, the whole-brother will receive two-thirds by intestacy and the half-sister will receive one-third.
• Afterborn Heirs. The intestate rules include heirs in gestation as of the intestate’s death. Thus, an heir conceived before the intestate’s death who is born after the intestate’s death is treated the same as an heir who was born during the intestate’s lifetime.
Special Rules and Application to Homestead Realty and Exemption
A special statutory rule or the rules of intestacy apply when Florida homestead realty cannot be devised or is not devised as permitted by law.5 Homestead may not be devised if the owner is survived by a minor child; however, a married couple with minor children may choose tenancy by the entireties ownership to avoid the prohibition that otherwise would apply if the sole owner died first. A married owner without a minor child may devise the homestead outright to the surviving spouse; otherwise, the married owner may not devise the homestead.
If a homestead owner cannot devise the homestead or does not devise it as permitted by law, the homestead will pass as follows: If the owner is survived by a spouse and any lineal descendant, the surviving spouse will receive a life estate in the homestead and the lineal descendants, per stirpes, will receive the vested remainder. If the owner is married but has no surviving lineal descendant, the homestead will pass by intestacy to the surviving spouse. If the owner is not married but has a surviving lineal descendant, the homestead will descend by intestacy to the lineal descendants, per stirpes. If the owner of the homestead is not survived by a spouse or lineal descendant, the homestead will pass by intestacy to other relatives, such as the decedent’s parents, siblings, or other collateral heirs.
Homestead which descends by statute or by devise will be exempt from the decedent’s creditors if the homestead 1) passes to the decedent’s surviving spouse or lineal descendants, or both, including by life estate and vested remainder; 2) passes by intestacy (but not by escheat); or 3) passes by devise to a person who could be an heir of the testator under either tier of intestate distributions.6 For example, the homestead will be exempt if an unmarried testator devises it to a grandchild even if the testator is survived by a child who is the parent of that grandchild.
If a homestead owner is married, it is important to consider whether homestead rights have been waived, whether a devise outright to the spouse is permissible, whether a life estate for the surviving spouse is desirable, and whether sole ownership or ownership by tenancy by the entireties is appropriate. If a homestead owner has the unlimited right to devise, it is important to determine who can qualify as an heir of the owner for purposes of receiving the exemption from the deceased owner’s creditors. The owner then can decide whether to make an exempt devise or a devise that is subject to abatement for payment of creditors. Further, if a nonexempt devise is to be made, consideration should be given as to what type of devise should be used and the priority of that devise under the rules of abatement.
Mandatory Application of Intestacy Due to Lack of Capacity
Intestacy is mandatory for a person under the age of 18 who is not an emancipated minor as well as for a person who does not have a valid will and lacks the testamentary capacity to make one, i.e, is not of sound mind.7 This includes a person who never had testamentary capacity and also includes a person who previously had the capacity to make a will but failed to do so. In addition, it includes a person who made and revoked a will when he or she had testamentary capacity but who lacks capacity to make a new will.
Other Applications of Rules in Estate Planning
• Use of Intestacy for Interim Estate Planning. A testator with an existing will may want to make significant changes to the will. During the estate planning process or while a testator is involved in proceedings to dissolve a marriage, intestacy may be an interim choice to consider. In some cases, the testator may prefer intestacy to the existing will during the interim period until a new will can be executed. For example, a testator may have terminated a relationship with a significant other who was the primary beneficiary of the existing will and may prefer intestacy to that will. Or a testator with an existing will that preferred one child over another may decide to treat all children equally, and intestacy may be preferred to the old will. Or a testator who has separated from a spouse may prefer intestacy or the elective share to an existing will during the separation or until the marriage is dissolved.
In such cases, the law allows the existing will to be revoked by a writing executed with the formalities of a will or by act, such as canceling the will; however, if the will is revoked by act, consideration should be given to utilizing witnesses to prove that the testator performed the act of revocation on the original will “with the intent, and for the purpose of revocation” and to evidencing the testator’s intent to revoke and act of revocation on the original will.8 On the other hand, if intestacy is not preferred for the interim, such as a testator who desires to change charitable beneficiaries but still exclude intestate heirs, then the original will should be kept intact in a safe place.
Application of Rules to Class Gifts and Terms of Relationship in Wills
When a will devises property to the descendants of the testator’s children, a child adopted by the testator’s child is included in such devise unless the will provides otherwise. Similarly, a devise to a beneficiary’s descendants includes descendants born out of wedlock to the same extent they would be treated as heirs of such beneficiary under the laws of intestate succession unless the will provides otherwise. In some cases, whether a relative is included depends on whether the relative is related maternally or paternally. Absent a contrary intent, a devise to the descendants of the testator’s brother and sister includes a child born out of wedlock to the testator’s sister but not a child born to the testator’s brother, if the brother never participated in a marriage ceremony with the child’s mother, never acknowledged paternity in writing, and paternity is not adjudicated during the brother’s lifetime or after his death. In a will, the testator can address the effect of such relationships and determine whether to include or exclude a person adopted into or out of a family or a person born to parents who are not lawfully married.
In many cases, a testator may include children or other relatives adopted into the family while excluding those adopted out of the family. Alternatively, some testators may choose to include a child who was adopted out of the family through an open adoption or who was adopted after the death of the parent related to such testator when the testator continues to have a relationship with that child. For example, a testator may choose to include a grandchild who is the child of a deceased son of the testator, even though the testator’s former daughter-in-law has remarried and her husband has adopted the testator’s grandchild. A testator may include a general provision that includes minor children adopted into the family but not children adopted as adults.
It may be necessary to determine the testator’s feelings regarding adoption to determine whether to default to the intestate rules of construction regarding adoption or to provide a different inclusionary or exclusionary rule.
With respect to children born out of wedlock, different situations may arise. In some cases, a father will recognize a child born out of wedlock as his child; whereas, in other cases, a wealthy or famous father may fear that after his death individuals will claim that he was their father. In such cases, wills can be drafted to include only named children or only children born to parents who were lawfully married prior to birth.
The intestate rules regarding the relative shares of collateral relatives of the whole-blood and of the half-blood do not automatically apply to class gifts or other terms of relationship within a will. Instead, whether half-blood relatives are included or excluded, and in what percentages, is based on the intention expressed by the testator. Many testators reject Florida’s intestate treatment of collateral relatives of the half-blood. Often, a testator either has a full and close relative with half-blood relatives or no or very little relationship with half-blood relatives and may choose to either include or exclude half-blood relatives entirely rather than limit their share to one-half. For example, a child who lives with a mother and other children of that mother, may have a different father than the other children; yet, the child may feel close to those other children even though they are only related by one parent. Alternatively, a child who does not live with his or her half-siblings may have no contact or very limited contact with them and may not want to include them for purposes of estate planning. In such situations, care should be taken in drafting to define who is included within a class gift or to refer only to certain relatives by name.
Incorporating Rules in Will Distributions to Testator’s Heirs
If a residuary devise fails in toto, the intestacy rules apply even though there is a will unless the will includes an alternative residuary provision. In some cases, the testator may choose to incorporate the rules of intestacy, providing a contingent distribution to the persons who would be the testator’s heirs had he or she died intestate or may apply modified rules rather than default to intestacy. This results in a testate proceeding, which applies some or all of the rules of intestacy, rather than an intestate proceeding.
Intestacy also may apply when devises are subject to conditions precedent, which are not satisfied, such as a survivorship requirement, when any alternative devises also fail. Thus, if the residuary devisees are required to survive the testator by six months, but none of them survive by that period, the residuary will pass by intestacy unless the will provides otherwise. In addition, intestacy may apply to a testamentary trust, in the event all of the trust beneficiaries die prior to full vesting of their interests.
For example, a gap may arise in a testamentary trust which provides for distribution to the testator’s children upon attainment of a stated age, with a contingent distribution to surviving descendants of such child or to the other surviving children or their descendants. If the child dies prior to that age and is not survived by any descendant or any other descendants of the testator, the remaining trust interests will result back to the testator’s estate and if the trust is a residuary trust, partial intestacy will arise. This may result in the estate passing to the estates of the heirs who survived the testator but died prior to the contingency in the will or trust.
An alternative would be to include a contingency or catch-all provision that applies to the extent property is not effectively disposed of by the residuary clause or the provisions of a testamentary trust, such as a provision for a distribution to the persons who would be the testator’s heirs under the laws of intestacy, with certain modifications. For example, a will or testamentary trust could provide for a contingent distribution to the persons who would be heirs of the testator had the testator died intestate as of the event requiring the distribution (or immediately prior to that event). This modified incorporation of intestacy can prevent property from passing from one estate to the estate of a deceased beneficiary or deceased heir.
A testator may want to preclude a specific heir or class of heirs from inheriting from the testator. To do this, the testator must effectively devise such assets away from such heirs. If the testator includes a contingent devise to the testator’s heirs, the testator could define those heirs to exclude a specific individual or a class of relatives. Also, if a contingent devise is made to the testator’s heirs, consideration should be given to whether to include heirs who are adopted into or out of the family or are born out of wedlock and whether to include relatives of the half-blood or whole-blood and in what proportions.
In some cases, married testators may choose to provide a contingent devise in both of their wills for the benefit of the persons who would be the heirs of each spouse, with one-half passing to the husband’s heirs and one-half passing to the wife’s heirs, determined as if each had died simultaneously and intestate as of that time.
Wills in Contemplation of Marriage or Children to Avoid Pretermitted Intestate Share
Generally, when a testator makes a will and then marries or has a child by birth or adoption without amending the will or making a new will before the testator dies, Florida law provides the spouse or child who was omitted from the will with the share the spouse or child would receive if the testator had died intestate. These intestate shares can be avoided if the testator evidences an intention to exclude the spouse or child or other statutory exceptions apply.9
During the estate planning process, the testator can discuss any plans to marry or have children. In some cases, the testator may be planning to marry a specific person in the near future so that the testator can consider whether to include or exclude that person from the present estate plan in the event of the marriage. In some cases, the will may be made in contemplation of a specific marriage so that the future spouse will not be considered pretermitted, with the will either providing for such person as the testator’s spouse or disclosing an intention not to provide for such spouse. Alternatively, the testator and his or her future spouse may choose to enter into a prenuptial agreement, whereby the future spouse waives all rights or certain rights, and under which the testator also may choose to agree to make certain devises.
A last alternative is for the testator to make a will without regard to such future spouse, knowing that in the event the testator does marry, the testator will be a pretermitted spouse unless the testator make a new will, obtains a waiver, or enters into an antenuptial agreement. If the spouse is a pretermitted spouse, the intestate rules will be relevant because the spouse will be entitled to the amount the spouse would receive if the testator had died intestate. If the testator would like to marry in the future but has no specific plans at present, the testator can choose to revisit these issues when the testator makes definite plans to marry (or after the marriage occurs).
During the estate planning process, the testator also may disclose an intention to have children by birth or adoption. Whether the testator includes after born or after adopted children in the will depends in part on whether the testator already has children or is currently expecting a child by birth or adoption. If the testator has children, the testator may choose to provide for any after born or after adopted children in the same manner as the present children. If the testator is expecting a child in the near future, the testator may choose to provide for such child or the testator may choose to provide for the testator’s spouse first and then for any present or future children if the spouse does not survive.
Testamentary Provisions for Distributions and Per Stirpital Distributions
Although a testator may provide for persons that would be heirs if the testator died intestate, most testators choose to benefit these persons in a different order or amount than provided by the laws of intestacy or through trust provisions rather than by outright distributions. Further, few testators choose the State of Florida as a contingent beneficiary of their estates; although, some testators do choose nongovernmental charitable beneficiaries. In addition, the rules of intestacy distribute assets to a minor or incapacitated heir, subject to the laws of guardianship, and do not allow postponement of vesting after the intestate’s death or postponement of possession after the age of majority or cessation of other incapacity.
A married testator with children may not want to divide his or her estate among the spouse and children at the testator’s death in accordance with the intestate rules but instead may choose to devise different percentages or present and future interests outright or in trust to them. Further, a testator may want to prevent children from having control over assets until they reach an age of maturity much later than the age of majority. Thus, a testator can use a trust to separate financial responsibility and powers of ownership from present or future beneficial enjoyment of the property. This may be accomplished by devising property in trust, whereby the trustee has legal title, the burden and responsibility of ownership, and discretion regarding distribution of income and principal. Further, use of a trust gives the testator flexibility and control that is not available through use of a guardian over property during the period of minority or other disability and that can extend to adult beneficiaries.
A will or trust also can be used to replicate the per stirpital distributions required by intestacy, whereby members of a younger generation stand in the shoes of a deceased member of an older generation. For example, a will can devise the residue to the testator’s children, with an equal share for each then living child and an equal share for each then deceased child to be divided per stirpes among that child’s lineal descendants. Or a will may provide for different distributions, whether per capita or per stirpes, or a combination. If all of the testator’s children predecease the testator, the testator may choose to divide the estate equally based on the number of grandchildren rather than the number of deceased children, and the testator may want to provide a share for the descendants of a deceased grandchild. Further, wills can be drafted to provide for individual or class gifts, with alternative devises to beneficiaries, rather than to the descendants of a deceased devisee.
Knowledge of the rules of intestate succession is a prerequisite when advising estate planning clients. It is important to know when intestacy is mandated by statute in general or for specific property, such as homestead. Intestacy also may provide useful interim planning until a will can be drafted and executed. It is important to understand the intestate treatment of persons who are adopted or born out of wedlock when drafting and interpreting class gifts and terms of relationships in wills. In addition, it is important to determine if a testator contemplates marriage or the birth or adoption of children to know how to advise the client regarding present and future estate planning. Knowledge of the intestate distributive scheme and use of per stirpital distributions is helpful when designing a testamentary plan.
Intestacy has many limitations that can be overcome by personalized drafting of wills that include numerous and varied distributive and administrative provisions. The use of a testamentary trust is an important estate planning tool that lacks a counterpart in intestacy and provides flexibility not allowed a guardian of the property of a minor or incapacitated heir. Thus, a testator may consider issues raised by the rules of intestate succession but may choose to devise property differently than the applicable intestate rules.
1 Intestacy applies to assets subject to administration in Florida, not assets that pass by reason of survivorship, beneficiary designation, trust law, or other will substitute, and does not apply to homestead realty and exempt personalty when they pass by special statutory rules. The intestate estate passes after payment of claims, expenses, allowances, and taxes, and property passing by partial intestacy abates before any devises under the will. See Fla. Const. art. X, §4; Fla. Stat. §§732.401 (homestead), 732.402 (exempt property), 733.805 (abatement), 733.817 (tax apportionment).
2 See Fla. Stat. §§732.101(1) (general intestacy rule), 732.102 (surviving spouse), 732.103(1) (descendants), 732.103(2) (parents), 732.103(3) (siblings), 732.103(4) (paternal and maternal shares), 732.103(5) (kindred of last deceased spouse), 732.104 (per stirpes distribution), 732.105 (half-blood), 732.106 (afterborn heirs), 732.107 (escheat), 732.108 (heirs adopted or born out of wedlock).
3 See Fla. Stat. §§732.6005(1), 732.608 (terminology for class gift or relationship), 732.108(1) (adopted persons). For trusts, see Fla. Stat. §§737.621, 737.623.
4 See Fla. Stat. §732.108(2) (persons born out of wedlock) and statutes cited in supra note 3.
5 See Fla. Const. art. X, §4(a), (c); Fla. Stat. §§732.401, 732.4015.
6 See Fla. Const. art X, §4(b); Snyder v. Davis , 699 So.2d 999 (Fla. 1997).
7 See Fla. Stat. §732.501 requires sound mind, “the ability of the testator ‘to mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.” Skelton v. Davis , 133 So.2d 432, 435 (Fla. Dist. Ct. App. 1961).
8 See Fla. Stat. §§732.505 (revocation by writing), 732.506 (revocation by act).
9 See Fla. Stat. §§732.301 (pretermitted spouse), 732.302 (pretermitted child), 732.806 (advancement), containing exceptions when spouse or child is not pretermitted due to provision, waiver, advancement, or intention in will or agreement.
Donna Litman is a professor of law at Nova Southeastern University, Shepard Broad Law Center, and a Florida Bar certified tax attorney. She teaches wills and trusts and other estate planning and tax courses and has published articles involving various aspects of estate planning and homestead law.
This column is submitted on behalf of the Real Property, Probate and Trust Law Section, Steven L. Hearn, chair, and S. Dresden Brunner and William P. Sklar, editors.