Effective October 1, 2011, a surviving spouse’s intestate share of an estate will go up from 50% to 100% of the estate if the decedent’s descendants are also descendants of the surviving spouse. If you’re a probate lawyer this is a BIG deal; you’ll need to know this new statute cold. For a reliable, user-friendly chart summarizing the new law, you’ll want to rely on Fort Lauderdale estate planning attorney David Shulman’s excellent Intestacy Flow Chart.

Here’s how the new intestacy regime for surviving spouses is explained in Florida House of Representative’s Staff Analysis of CS/HB 325:

Intestate Estate

When an individual dies (the decedent) without a will, a person’s will is declared invalid, or assets are not distributed by a valid will, then the individual is considered “intestate.” Since there is no will to direct the distribution of assets, Florida law provides the distribution of assets that remain after paying debts and the expense of conducting the probate proceedings.

Florida law on intestate succession provides that various family members receive a share of the decedent’s estate:

  • If there are no surviving descendants of the decedent, then the spouse receives the entire intestate estate.
  • If there are surviving descendants of the decedent, who are all also lineal descendants of the surviving spouse, then the surviving spouse receives the first $60,000 in property of the estate, plus one-half of the remaining balance of the estate subject to distribution. [HERE IS WHERE THE LAW IS CHANGING. EFFECTIVE OCTOBER 1, 2011, THIS SURVIVING SPOUSE NOW GETS 100% OF THE ESTATE.]
  • If there are surviving descendants of the decedent, one or more of whom are not lineal descendants of the surviving spouse, then the surviving spouse receives one half of the estate and the lineal descendants receive the other half.
  • There are additional provisions for distribution in situations beyond these, which distribute assets to other family members, but those are not relevant to the changes made in this bill. See ss. 732.103 and 732.104, F.S.

Effect of the Bill- Intestate Share of Spouse (Section 2)

The bill amends s. 732.102(2), F.S., to provide that the intestate share of a surviving spouse, where all of the decedent’s descendants are also descendants of the surviving spouse, is the entire estate. For example, if a husband passes away and was survived by his wife and two children and the wife was the mother of both children and neither had any other children, the wife would now inherit the entire estate rather than the first $60,000 and half of the remaining estate.

The bill also creates s. 732.102(4), F.S., to provide that if the surviving spouse has descendants that are also descendants of the decedent, but the surviving spouse also has a descendant not related to the decedent, then the surviving spouse’s intestate share is half of the estate. The lineal descendants of the decedent would inherit the remaining half of the estate under s. 732.103, F.S.