Fla. Stat. 732.102 governs the distribution to a surviving spouse of an intestate estate – one in which the decedent did not leave a Last Will – by providing the following three alternatives:
- the decedent leaves no surviving children, in which case the surviving spouse receives the entire intestate estate;
- the decedent leaves surviving children, all of whom are lineal descendants (i.e., children of) the surviving spouse, in which case the surviving spouse receives the first $60,000 plus one-half of the balance of the estate; and
- the decedent leaves surviving children, one or more of whom are not lineal descendants of the surviving spouse, in which case the surviving spouse receives one-half of the estate.
Effective October 1, 2011, Fla. Stat. 732.102(2) is amended to provide that in this second alternative – where there are surviving children, all of whom are descendants of the surviving spouse – that the surviving spouse receives the entire intestate estate. A new section is also created at Fla. Stat. 732.102(4), which addresses a hybrid family situation where the surviving spouse has children with both the decedent and someone else, and sets the share of the surviving spouse at one-half.
In short, after October 1, 2011, in an intestate estate where the decedent is survived by a spouse, the surviving spouse will receive:
- the entire estate if (a) decedent leaves no children, or (b) decedent leaves only children who are descendants of the surviving spouse; or
- one-half the estate if (a) decedent leaves any children who are not descendants of the surviving spouse, or (b) the decedent leaves only children who are descendants of the surviving spouse, but the surviving spouse also has children who are not descendants of the decedent.
Probate can be a complicated and technical process, whether the estate is intestate or not. Contact a Florida probate attorney for assistance.
