What the rule says
Florida intestacy law treats marriages with shared descendants more favorably than marriages with descendants from prior relationships. Under Florida Statutes § 732.102(1), when a married Florida resident dies without a will, the surviving spouse takes the entire intestate estate if both of the following are true:
1. All of the decedent's descendants are also descendants of the surviving spouse. Every child, grandchild, or further descendant of the decedent is also a descendant of the surviving spouse. 2. The surviving spouse has no other descendants. The surviving spouse does not have any children, grandchildren, or further descendants outside the marriage to the decedent.
When both conditions are met, the children inherit nothing through intestacy. The entire estate — community-style assets, separate property, real property, personal property — passes to the surviving spouse.
What this means in practice
This rule reflects a legislative judgment that when descendants are mutual to both spouses, leaving the entire estate to the surviving spouse is unlikely to disadvantage the children. The children, on the survivor's eventual death, will typically inherit through that spouse's estate.
The rule produces a clean outcome for many traditional family structures: married couple, children together, no other descendants on either side. The surviving spouse takes everything; the children eventually inherit on the spouse's death.
But the rule has hard edges that disqualify many Florida families:
- A child from a prior relationship on either side disqualifies the rule. If the decedent has a child from a prior marriage who is not the surviving spouse's child, § 732.102(1) does not apply. The estate is split. - A child of the surviving spouse from outside the marriage disqualifies the rule. Even if the decedent has only descendants who are also descendants of the spouse, if the spouse has any descendant outside the marriage, § 732.102(1) does not apply. - The rule covers all descendants, not just children. A grandchild from a deceased child of a prior relationship triggers the disqualification just as a living child would.
In any case where § 732.102(1) does not apply, Florida Statutes § 732.102(3) or (4) governs instead, splitting the estate between the spouse and the descendants under different formulas.
What you can do about it
For families that fit § 732.102(1) — married, shared descendants only, no outside descendants — the intestacy rule produces what most couples would have chosen anyway. A will is still useful for naming a personal representative, addressing guardianship of minor children, and avoiding ambiguity, but the substantive distribution would not change.
For families that do not fit the rule, a will is the only way to direct the entire estate to the surviving spouse if that is the intention. Without a will, the statutory split between spouse and descendants is mandatory.
A valid Florida will requires the testator's signature in the presence of two attesting witnesses, who must each sign in the presence of the testator and of each other (Fla. Stat. § 732.502). Florida does not recognize holographic wills.
Florida also has homestead protections that operate independently of intestacy and limit how a homestead property can be devised when a surviving spouse or minor children exist. Homestead is a separate body of Florida law and is not addressed in this rule.
Who this affects most
Section 732.102(1) is most relevant for:
- Married Florida couples who have only descendants together and no descendants from prior relationships - Younger families where neither spouse has previously had children - Couples whose intestate distribution would already match their preferences (entire estate to the surviving spouse)
This rule is the unusual case in modern American intestacy: a default that often matches what a couple would have chosen. Florida residents whose family structures fit the rule are well-served by it. Florida residents whose family structures do not fit the rule must use a will to avoid the split.