Florida Intestate Succession for Surviving Spouses

When your spouse passes away without a will in Florida, you're suddenly thrown into a legal process you probably never prepared for. The paperwork alone can feel overwhelming especially while you're grieving. Understanding Florida intestate succession paperwork for surviving spouses helps you protect your rights, avoid costly delays, and make sure you receive the inheritance the law says you're entitled to. This guide walks you through exactly what you need to know and do.

What does "intestate succession" actually mean in Florida?

Intestate succession is what happens when someone dies without a valid will. Florida law (Florida Statutes Chapter 732) has a set of rules that determines who inherits the deceased person's property. These rules are sometimes called the "default plan" for distributing assets when no estate plan exists.

For surviving spouses, Florida's intestate succession laws provide specific inheritance rights that depend on the family situation whether there are children, whether those children are from the marriage or a prior relationship, and what type of property is involved.

What does a surviving spouse inherit when there's no will?

Your share under Florida intestate succession depends on who else survives the deceased:

If there are no surviving descendants (children, grandchildren, etc.): You inherit the entire intestate estate.
If all surviving descendants are also your descendants: You inherit the entire intestate estate.
If the deceased has surviving descendants from a previous relationship: You receive one-half of the intestate estate.

These rules apply only to "intestate property" assets that pass through probate. Some property, like jointly held accounts, life insurance with named beneficiaries, or assets in a trust, may pass outside of probate regardless of whether a will exists.

What paperwork do you need to file for intestate succession in Florida?

Filing the right documents with the probate court is how you legally establish your inheritance. Here are the key forms and documents typically required:

Petition for Administration – This opens the probate case and asks the court to appoint a personal representative (executor).
Death certificate – A certified copy is required for filing.
Oath of Personal Representative – If you're serving as the personal representative, you'll need to swear to fulfill your duties faithfully.
Order Appointing Personal Representative – The court issues this once it approves the petition.
Letters of Administration – These give the personal representative legal authority to act on behalf of the estate.
Notice to Creditors – Florida law requires you to publish a notice so creditors can file claims against the estate.
Inventory of the Estate – A detailed list of the deceased's assets and their values.
Petition for Discharge – Filed at the end of probate to close the estate and distribute remaining assets.

Each of these documents has specific formatting and content requirements. If you're unsure about the filing process, reviewing how to file inheritance paperwork in Florida probate court can help you understand the step-by-step court process.

How do you start the probate process as a surviving spouse?

Florida law gives you priority to serve as the personal representative of your spouse's estate, especially when there's no will naming someone else. Here's the general process:

Get certified death certificates. Order at least 10 copies you'll need them for banks, insurance companies, and the court.
Identify the correct county. You file probate in the Florida county where your spouse was legally domiciled at the time of death.
Consult a probate attorney. While not legally required, Florida's probate rules are detailed and procedural errors can cause significant delays.
File the Petition for Administration. This is the formal request to open probate. The petition must include information about the deceased, their heirs, and their assets.
Complete the Oath and receive Letters of Administration. Once the court appoints you, you'll have legal authority to manage the estate.
Handle creditor claims and pay valid debts. Florida law gives creditors 90 days from the first publication of notice to file claims.
Distribute remaining assets and close the estate. After debts, expenses, and taxes are handled, you file a final accounting and petition for discharge.

What's the difference between formal administration and summary administration?

Florida offers two types of probate:

Summary administration is available when the total value of the probate estate (excluding exempt property) is $75,000 or less, or when the deceased has been dead for more than two years. This process is faster and less expensive, but it has strict eligibility requirements.

Formal administration is the standard probate process used for larger estates. It's more involved, takes longer (typically 6–12 months for straightforward cases), and requires more court filings.

As a surviving spouse, your attorney can help you determine which process applies. If your spouse's estate qualifies for summary administration, you could save months of time and thousands of dollars in court and legal fees.

What common mistakes do surviving spouses make with intestate paperwork?

Here are errors that regularly cause problems in Florida intestate succession cases:

Missing filing deadlines. While there's no strict deadline to open probate, delaying too long can create complications with creditors, tax filings, and asset management. Reviewing Florida inheritance paperwork filing deadlines and court fees can help you stay on track.
Failing to inventory all assets. Some spouses don't realize that bank accounts, retirement funds, vehicles, and even digital assets count as estate property.
Confusing probate and non-probate assets. Property held in joint tenancy with right of survivorship, payable-on-death accounts, and assets with named beneficiaries don't go through intestate succession.
Not properly notifying creditors. Skipping or incorrectly publishing the creditor notice can expose the estate to later claims.
Distributing assets too early. Handing out property before debts and taxes are settled can make you personally liable as the personal representative.
Overlooking the elective share. Florida law gives a surviving spouse the right to claim 30% of the deceased spouse's "elective estate," even when a will exists but doesn't provide enough. This concept sometimes affects how intestate estates are calculated, too.

Do you owe taxes on an intestate inheritance in Florida?

Florida does not have a state inheritance tax or estate tax. However, federal estate tax may apply if the estate exceeds the federal exemption threshold (currently $13.61 million for 2024). Most intestate estates won't hit this threshold.

That said, you may still need to file certain tax returns on behalf of the estate including a final income tax return for the deceased and possibly an estate income tax return (Form 1041) if the estate earns income during probate. For more detail on this topic, see our guide on tax information for surviving spouses handling intestate succession.

What if your spouse owned property in another state?

Real estate is governed by the laws of the state where it's located. So if your Florida-based spouse owned a vacation home in Georgia or a rental property in North Carolina, you may need to open an "ancillary probate" proceeding in that state as well.

This is especially relevant for out-of-state heirs and families dealing with multi-state property. If you're navigating this situation, our article on document requirements for out-of-state heirs in Florida covers what you'll need.

Can you avoid probate if your spouse died without a will?

Probate avoidance is harder when there's no will, but certain strategies may help in specific situations:

Small estate affidavit: If the estate qualifies for summary administration, the streamlined process may be close enough to "avoiding" traditional probate.
Assets with survivorship rights: Jointly owned property with right of survivorship passes automatically to you and doesn't go through probate.
Designated beneficiaries: Life insurance, retirement accounts, and POD/TOD accounts with you as the named beneficiary transfer outside of probate.

Keep in mind that even when some assets bypass probate, you may still need to open a probate case to transfer other property especially real estate titled solely in your spouse's name.

When should you hire a Florida probate attorney?

While Florida doesn't require you to have a lawyer for probate, the practical reality is that most people benefit from professional help. Here's when it's especially important:

The estate includes real property (a house, land, or rental property).
There are children from a prior relationship involved.
Creditors have filed or may file claims against the estate.
The estate is large enough to trigger federal estate tax concerns.
There are disputes among heirs about who should inherit what.
You're not a Florida resident and need to handle probate remotely.

Florida probate attorneys typically charge either a percentage of the estate value (set by statute at up to 3% for estates under $1 million) or an hourly rate. Always ask about fee structures upfront.

Practical checklist for surviving spouses handling intestate succession

☑ Obtain at least 10 certified copies of the death certificate.
☑ Gather financial records: bank statements, property deeds, vehicle titles, retirement account statements, insurance policies.
☑ Determine your spouse's county of domicile in Florida for proper filing.
☑ Decide whether you'll hire a probate attorney (strongly recommended for most cases).
☑ File the Petition for Administration with the appropriate Florida probate court.
☑ Complete the Oath of Personal Representative and obtain Letters of Administration.
☑ Publish Notice to Creditors in a local newspaper as required by Florida law.
☑ Prepare and file a full inventory of estate assets with the court.
☑ Pay valid creditor claims, estate expenses, and any applicable taxes.
☑ File the Petition for Discharge to close the estate and distribute remaining assets.
☑ Review your own estate plan create or update your will so your family won't face the same situation.

Tip: Don't wait to start. While grief makes everything harder, the sooner you begin the probate process, the fewer complications you'll face with unpaid bills, frozen accounts, and unmanaged property. A 30-minute consultation with a Florida probate attorney can give you clarity on your specific situation and help you map out a timeline. Many attorneys offer free initial consultations for probate matters take advantage of that.