Florida inheritance Law
Understanding Inheritance Law in Florida
You’ve worked hard most of your life trying to build wealth and obtain assets. Now the most prudent thing you can do is help ensure that all of that hard work doesn’t fall into the wrong hands…or simply escheat to the state.
Make sure you have an estate plan in place specifically delineating who you proudly want to pass your wealth and assets on to.
Understanding Florida’s Inheritance Law
In Florida, inheritance laws govern the distribution of assets after an individual’s death. These laws are crucial for residents to understand, especially when planning their estates or handling inheritance matters. Florida’s inheritance laws have unique characteristics compared to other states, such as:
– No state inheritance or estate taxes: Florida is one of the states that do not impose state-level inheritance or estate taxes, which can significantly affect estate planning and financial implications for heirs. Inheritance laws in Florida do not consider inheritance as income.
– Specific legal provisions: Florida has particular laws impacting estate planning, asset distribution, and the rights of heirs and beneficiaries.
One of the most notable provisions in Florida law is the Homestead Exemption. This law impacts estate planning significantly because it provides certain protections for the primary residence of the deceased. Under this provision:
- The homestead property is often exempt from creditors, except for specific types of debts like mortgages, property taxes, or mechanic’s liens.
- A surviving spouse and minor children will always inherit the Florida homestead property, regardless of what the will says. ONLY if there are no minor children and no surviving spouse can a Florida homestead be bequeathed to anyone else.
- If there is a surviving spouse and minor children, then the homestead cannot be devised to anyone else. By operation of law the surviving spouse will receive a life estate, with the remainder to descendants.
- If there is no surviving spouse or minor children, the homestead can be freely devised…HOWEVER if it is devised to persons outside of the class of intestate heirs, the homestead protections outlined in Article X, Section 4 of the Florida Constitution will not inure to those devisees.
- Having a provision in your estate planning documents to set up a trust to take over the homestead should it be devised to a minor child would be ideal to help deal with this magnitude of an inheritance.
Florida law provides strong protections and rights for surviving spouses, which directly affects estate distribution:
- The Elective Share: A surviving spouse is entitled to 30% of the decedent’s estate, including both probate and certain non-probate assets, regardless of the will’s provisions. This can override the decedent’s wishes as expressed in the will.
- Homestead Rights: If the decedent owned a homestead property and has minor children, the surviving spouse has the right to either a life estate in the property or a 50% tenant-in-common interest, which can supersede other instructions in the will.
- If you want to make sure your homestead is left solely to your surviving spouse, ensure that you have the home titled in you and your spouse’s name as joint tenants with rights of survivorship. Immediately upon the passing of 1 joint tenant, the entire share of the decedent passes automatically to the surviving title holder(s).
Florida’s intestate succession laws dictate how assets are distributed if someone dies without a valid will. These laws have a significant impact on asset distribution:
- The estate is distributed to the closest relatives, starting with the spouse and children, then parents, siblings, and so on.
- This predetermined hierarchy can greatly affect the distribution of assets, especially in blended families or situations involving unmarried partners.
Florida’s probate process can be more streamlined compared to other states, affecting how quickly beneficiaries can access their inheritance:
- Summary Administration: This is a shorter, simplified probate process available for estates valued under $75,000 or when the decedent has been deceased for more than two years.
- Formal Administration: Required for larger estates, this process is more time-consuming and involves more court oversight.
Protection of Minor Children
Florida law provides specific provisions for the protection of minor children in inheritance matters:
- If a minor child’s parents are deceased, the child is entitled to certain benefits and protections, including a portion of the estate and potential guardianship considerations.
No Estate or Inheritance Tax
While not a regulation on how assets are distributed, the absence of state estate or inheritance tax in Florida can significantly influence estate planning strategies, as it can lead to different financial planning decisions compared to states where these taxes are levied.
Understanding these specific legal provisions is crucial for effective estate planning in Florida. They can dictate not only how an estate is divided but also offer protections to certain beneficiaries, potentially overriding the decedent’s stated wishes in some cases. For anyone planning their estate in Florida, it’s important to consider these unique aspects to ensure that their estate plan aligns with their intentions and complies with state law.
Does Florida Have an Inheritance Tax or Estate Tax?
Florida’s approach to inheritance and estate taxes is noteworthy:
Absence of inheritance and estate taxes: For individuals who passed away after December 31, 2004, there are no state-imposed inheritance or estate taxes in Florida. This policy contrasts with some states that levy taxes on estates or inheritances.
Required tax filings: Despite the absence of state taxes, estates in Florida must still comply with federal tax requirements, including filing final individual state and federal income tax returns and, in some cases, federal estate tax returns.
Dying With a Will in Florida
The validity of a will in Florida hinges on meeting specific legal criteria:
Legal requirements: The will must be signed in the presence of at least two witnesses. If the individual is unable to sign due to physical impairment, another person may sign on their behalf in their presence.
Executor and property distribution: A valid will should name an executor responsible for disbursing the estate’s assets. This includes identifying clear recipients for each piece of property.
**VERY IMPORTANT TO NOTE: Too often people bring old wills with them from other states and while Florida will give full faith and credit to the best of their ability as long as the will was executed under the laws of the state it was created in, in FLORIDA you cannot appoint a NON-Resident, NON-Relative to be your executor. So your best friend from New York cannot administer your Florida estate. A Florida relative will be appointed by the Court or a professional Administrator ad litem/Personal Representative will be appointed.
Administration processes: Depending on the estate’s circumstances, it may undergo disposition without administration, summary administration, or formal administration.
Dying Without a Will in Florida
In the absence of a will, Florida’s intestate succession laws determine asset distribution:
Legal hierarchy: The estate is distributed according to a predefined legal hierarchy, prioritizing spouses, children, and then extended family members.
Impact on family: The laws detail how assets are divided among surviving family members, with different rules applying based on the familial relationships and the presence of a surviving spouse or children.
Spouses in Florida Inheritance Law
Surviving spouses in Florida have specific rights under inheritance law:
Entitlement to the estate: In scenarios where there are no surviving children, or all surviving children are also the children of the surviving spouse, the spouse is entitled to the entire estate.
Elective share and allowances: Florida law provides for an elective share for disinherited spouses and a family allowance to support the surviving spouse during the probate process.
Divorces and Inheritance Rights
Divorce can significantly impact inheritance rights in Florida:
Loss of rights after divorce: Once a divorce is finalized, the former spouse loses any inheritance rights under Florida law.
Rights during divorce proceedings: If the decedent passes away during divorce proceedings, the estranged spouse may still have rights to the estate.
Children and Inheritance Rights
The rights of children to inherit in Florida vary based on their relationship with the decedent.
Full estate inheritance: Children are entitled to the entire estate if there is no surviving spouse.
Different scenarios: The law differentiates between biological, adopted, and stepchildren, with each category having specific inheritance rights.
Under Florida intestate succession laws, biological children hold the strongest inheritance rights of any type of child. AS long as paternity can be proven, it does not matter if the children were born within a marriage or not. Grandchildren only take automatically if their parents predeceased them.
According to Florida inheritance laws, adopted children have the same inheritance rights as biological children.
Foster children, biological children that were put up for adoption and stepchildren will not receive inheritance rights automatically. These children will lose out on inheritances as Florida government does not recognize children within these groups as being legally “yours,” so they lose out on inheritances if you don’t have a valid will listing them as an heir.
Extended Family and Inheritance
In the absence of immediate family, extended family members may inherit:
Order of inheritance: The estate is distributed to parents, siblings, nieces and nephews, and further relatives in a specific order.
Distribution rules: The law outlines how the estate is divided among extended family members when no immediate family is present.
Non-Probate Florida Inheritances
Certain types of assets in Florida are not subject to the probate process: (as long as you set up the beneficiary before hand)
Exempt assets: This includes retirement accounts, life insurance policies, payable-on-death accounts, and jointly-owned properties.
Direct transfer: These assets can be transferred directly to the named beneficiaries without going through probate.
For more detailed information and guidance on navigating Florida’s inheritance laws, consider consulting with a legal expert at Bryant Law with over 10 years of specializing in estate planning. Understanding these laws can ensure that your estate is managed and distributed according to your wishes, providing peace of mind for you and your loved ones.
Bryant Law is the best! I have conferred with Brooke on many occasions and on a variety of legal matters. Though Brooke specializes in Probate and Civil Litigation, for which I have retained her successfully, she has always pointed me in the right direction for any of my legal needs. She is trustworthy, knowledgeable, responsive, friendly and sharp as a tack!! I wouldn’t go to anyone else and you shouldn’t either!!