Florida Inheritance Law
Surviving Spouses, Heirs, and Next of Kin
Inheritance Law in Florida refers to the rights of individuals to receive money and property upon the death of a Florida citizen. Under Florida probate law, also referred to as Florida estate law, there are many valuable property rights created for beneficiaries, heirs, next of kin, widows, and loved ones.
The Florida probate code, as well as Florida statutes, as well as decisions by appellate courts, serve as the foundation of Florida inheritance law or commonly called “Surviving Spouse Law”. It is these statutes, these cases, which give beneficiaries and family members their rights to inherit money and property from a Florida citizen who has passed away.
You can think of Florida inheritance law as being in two camps. One camp includes all the rights of family members created by Florida probate law. Secondly, Florida inheritances are created by the intent of a Florida resident who decides to leave money or property to you when he or she dies. The Florida resident, such as a mom or dad, may intend to leave you a bank account by a right of survivorship, or may intend to leave you half of their estate, under a Florida will, or under a Florida revocable trust.
Florida inheritance law creates very, very valuable property rights for a widow. If you are a surviving husband or a surviving wife, often referred to as a “surviving spouse”, of a now deceased Florida citizen, you have many valuable property rights to bank accounts, brokerage accounts, a family residence, retirement accounts, personal property, and cash. That’s because Florida inheritance law views the widow as a very important part of the Florida family. So important, that Florida surviving spouse law wants to protect the widow.
A widow, in Florida, has a right to a “family allowance” during the probate process or the estate administration process. This may be up to $18,000. In addition, a widow, or a Florida surviving spouse, has certain rights to personal property, and an automobile of their husband or wife who just passed away. Federal law actually provides a widow with rights to your late spouse’s retirement account– even if your late spouse names somebody else as the retirement account beneficiary without your consent. In addition, if you are named as a joint tenant, with a right of survivorship, with your late spouse on a bank account, a brokerage account, or other property, you have certain legal presumptions and preferences under Florida inheritance law. If you own Florida real estate, or other property, as joint tenants, with your spouse, you may have an interest in what is referred to under Florida inheritance law as “tenancy by the entirety” or as “tenants by the entirety.”
The short of it? If you are a surviving spouse, a widow, and your husband or wife just passed away in Florida, you need to know all of your rights under Florida inheritance law. Why? Because all of the valuable property rights, all the Florida inheritance rights, which a widow is entitled to during the Florida probate process, and during the Florida estate administration process, may not be readily apparent.
A special caution should be given to stepmothers, and stepfathers. If your husband or wife just died, and that husband or wife was not your first spouse, your spouse’s children from a prior relationship may not want you to receive all of the property which you are entitled to under Florida inheritance law.
Probate litigation, and estate disputes, between stepchildren and second or third spouses of a Florida citizen who has just passed away is, and our, very common.
Many times, in Florida counties like Palm Beach, and Broward, senior citizens find love and companionship in their golden years, after they have divorced or lost their first husband or first wife. They re-marry. Because widows in Florida have such great rights, this can create a financial tension between you and your stepchildren. That’s why probate lawyers, lawyers in Florida who write wills and trusts, want to carefully plan your estate so that in inheritance war is not started when you die.
Now is the time to talk about some principles of Florida inheritance law which are very, very important. First of all, no one, and I mean no one, is entitled to an inheritance. A family member, an only son or daughter, next of kin, heir, grandchild, or descendent is not guaranteed and inheritance under Florida inheritance law. There are two general exceptions to this rule. One, family members do have inheritance rights to a Florida estate if a Florida citizen dies without a will. Two, one generally cannot disinherit a wife or husband. Absent those two exceptions, a Florida resident may generally leave his or her property to anyone they want. If he or she wants to leave all their money to a neighbor, to a charity, to a trust for their cat or dog, or a best friend, instead of their adult children, only child, or only brother, they can do it. The only requirements under Florida inheritance law are that the Florida citizen or resident be competent and that they knew what they were doing, and free from undue influence or some type of force. Any will, trust, ruminating, if which is caused or created by undue influence is invalid. The surviving wife or husband, a widow, may give up their inheritance rights by consenting to do so. This is often done by signing a valid prenuptial agreement, post nuptial agreement, or other marital agreement or contract. In other words, Florida inheritance rights may be altered by written consent or agreement. But be cautious! Many times “deals,” agreements, or waivers of inheritance rights, need to be in writing, and may need to be witnessed. There may be other requirements under Florida law which may include disclosure.
Promises to keep? No way! What if someone promises to leave an inheritance to you? But the will leaves everything to someone else? Do you inherit? A further thought on inheritance law in Florida: oral promises to leave in inheritance are not valid. For someone to leave an inheritance under Florida law, they must do so by some written form: under a last will, under a Florida revocable trust, or by creating, through written documents, a joint Florida bank account, or by naming someone as a beneficiary of some life insurance policy or on an annuity.
If a Florida citizen dies without a will, and he or she has property which is left in his or her Florida estate, that property is said to be distributed to family members by the process, or the law, known as “intestacy.” All “intestacy” means is that a dead Florida citizen’s property will be distributed to family members according to a scheme created by the Florida legislature, and found in the Florida probate code. Intestacy, in Florida, only happens, and comes into play, when someone dies without a will. Family members, sometimes referred to as “heirs” or “next of kin”, have valuable inheritance rights and property rights under Florida inheritance law. Widows, heirs, and minor children who survive a dead Florida spouse or parent have certain rights to a family residence which is referred to as Florida “homestead.”
Florida Homestead is often the subject of dispute and litigation. A widow, and minor children, have important, invaluable, rights to the family residence in Florida. In addition, a family residence in Florida, a Homestead, may not be deeded, or transferred, or conveyed, except under certain circumstances, when the owner of the Florida Homestead has a spouse or minor children. Put another way, under Florida inheritance law, someone who owns a family residence cannot just leave it to anyone they want when they die. A surviving Florida widow or minor children have rights under Florida inheritance law. Many times, to clear up this issue, during the probate process, a court or probate procedure starts with the filing of a probate document known as a “petition to determine Homestead.” Such a probate document is an attempt to identify what family members have a right to a Florida family residence, and to determine whether the family residence in Florida has certain protections of Florida Homestead.
There is a very recent change to Florida inheritance law that helps a Florida widow if his or her wife or husband died with a Florida Homestead, and it was not left properly. The surviving widow, who may only have a limited right to live in a Homestead during his or her life, may now take steps to convert that Florida “life estate”. This new Florida surviving spouse law is a very valuable development and property right for a surviving widow.
Finally, Florida, especially counties like Miami-Dade, Palm Beach County, and Fort Lauderdale and Broward County, have many “split families”. There are many second and third marriages in Florida with children born of the first marriage and children born of a second or third marriage. There are large, and extended “modern families.”
But perhaps the most common rights under Florida inheritance law include the right to inherit money and property from a deceased Florida resident under his or her will or by gift.
A Florida resident may dispose of his or her property under a Florida will by leaving their property directly to the chosen beneficiaries. The named beneficiary under the will becomes entitled to receive that inheritance, providing the inheritance still exists. So, for example, if your uncle John left a piece of real estate to you under his last will, but between the time your uncle John signed the will, and when he died, he sold the real estate, you do not inherit. That’s because the real estate is not exist anymore. The real estate, under Florida inheritance law, is said to be “adeemed”. What you’re dealing with under Florida or inheritance law, then, is what is referred to as ademption. There are, of course, exceptions to this rule of redemption, and lost inheritances. It depends on what your uncle John intended, and what his probate lawyer put in his will. The careful for inheritances that can change. Be careful, for example, of inheriting shares of stock. If your aunt Sophie leaves her 100 shares of Walmart stock to, but between the time that on Sophie signs the will, and when she dies in Florida, the 100 shares of Walmart stock have become 200 shares of Walmart stock: do you inherit the 100 shares or the 200 shares? What about dividends and increases in value during the probate process? If your father left you a small apartment complex and Aventura, Florida , who gets the rental income between the time that your father died in the time that the personal representative of the Miami Dade County estate distributes the small apartment complex to you by a Florida deed? After all, the probate process, is not necessarily faster quick when there are valuable assets, complex issues of estate administration, or when a federal estate tax return needs to be filed with the IRS. It could take one to three years before you inherit that small apartment complex from your father’s estate. So, do you inherit just the apartment complex by a Florida deed, or do you also receive all the rental income for the 1 to 3 year. Or, as the rental income go to the estate?
A Florida resident may also leave you an inheritance under his or her revocable trust, also referred to sometimes as a Florida living trust. A Florida revocable trust and a Florida living trust are the same thing. They are trusts created by Florida resident which may be changed or revoked at any time by that Florida resident, while the Florida resident is alive, and competent. Once the Florida resident dies, his or her revocable trust becomes your revocable. The assets and money in the Florida revocable trust, which is now a Florida irrevocable trust, will be distributed, or not distributed according to the terms of the Florida revocable trust.
A Florida resident may also leave an inheritance by creating a beneficiary designation, by making a gift, or by creating joint accounts. Naming a beneficiary on an annuity, a Florida bank account, creating a joint account with a right of survivorship, or designating the beneficiary of a retirement account, life insurance policy or IRA can be a simple, and effective, way to leave an inheritance. When beneficiaries are properly named, Florida inheritance law states that the named beneficiary automatically receives that inheritance, by “operation of law.”
It is important for all beneficiaries, family members, and heirs to understand that their inheritance rights under Florida inheritance law are subject to the Florida probate code, and the Florida probate rules. What does this mean? It means that before a beneficiary may inherit from the Florida State, Florida revocable trust, all the expenses of administration must be paid, and all the debts of the deceased Florida resident must also be paid off. If, for example the dead Florida resident of more money than he was worth, nobody inherits. Remember, that part of the probate administration process in Florida includes paying the dead Florida residents final federal income taxes, as well as his or her debts: credit card payments, mortgages, outstanding real estate taxes, electric bills, loans, etc. Florida inheritance law will not let a family member a beneficiary take before a valid creditor of the late for resident. A very important related area of the Florida probate process is what is referred to as the rights of creditors of the dead Florida resident. If the dead Florida resident someone money, that someone is referred to as and “estate creditor.” Creditors to Florida State’s need to comply with the rules under the Florida probate code in the Florida probate rules to make sure they get paid. If they don’t, or if they miss a deadline, they may never be paid.
A big unanswered question under Florida inheritance law is whether gay couples, same-sex couples who are validly married in another state, have inheritance rights. The Defense of Marriage Act, also called “DOMA” , which only recognized a marriage as between a man and a woman, was overturned by the United States Supreme Court in June 2013. Many probate lawyers in Florida, many Florida inheritance lawyers, believe that this paves the way for gay men and women, and the LBGT community, to assert, and enforce, inheritance rights in Florida which never before existed. Many probate lawyers across the country, believe now, with the death of DOMA, that thousands and thousands of Americans will now have rights to inherit from the estates, trusts, and bank accounts. Florida law does not recognize same-sex couples or gay marriages. Florida law, in essence, supports the now overturned DOMA. But with the overturn of DOMA, it will not be an easy legal path for gay couples. In Florida, gay couples may need to still fight DOMA in probate courts, and fight the Florida laws which are based on, or are similar to, DOMA. Consider: what if two gay people, who are lifelong residents of Florida, were married in Massachusetts, California, Hawaii?, What if they return to their home in Palm Beach County, Florida, or in Fort Lauderdale, Florida, and then one of the two gay persons dies? What if the dead gay Florida resident died without a will, or had an older will which did not mention, or reference, his or her new spouse. Does the gay surviving spouse inherit from the dead gay person’s estate? This will be part of the inheritance law in Florida war which will certainly be waged in a Florida probate court over the very near future.