Intestacy in the context of Estate Planning in Florida: when to apply the intestacy rules and how to avoid them.

• Author: Litman, Donna

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)

General Rules

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 wed lock 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...