BUSINESS LAW 101 / Probate Beneficiaries

By Albert L. Kelley

Who are Beneficiaries? This depends on if there is a will or not.

If there is a will, called a testate probate, the will determines who the beneficiaries are. The person who died (the decedent) can name anyone they want in the will as a beneficiary to their belongings, except if the person who died was married or had minor children. Unless there is a prenuptial or antenuptial agreement, a person cannot entirely disinherit a spouse. If not listed in the will, the spouse can elect to take a 30% share of the estate. While minor children can be disinherited, under the homestead laws, a homestead property cannot be transferred to anyone but the spouse and minor children.

If there was no will, what we call an intestate probate, the beneficiaries are the relatives of the person who died. The relatives are not all equal; there is a priority order that the Court will look at. The spouse and minor children are in first position. If the person who died (the decedent) was married with no children, or only had children with their current spouse, the spouse will inherit all of their belongings. If the person who died had children with a person other than their current spouse, the current spouse inherits half the estate and the other half goes to the other children. If the surviving spouse has children with the person who died and also had children with another person, then the surviving spouse inherits one half of the estate and the other half goes to the decedent’s children. For the purposes of probate, children include legally adopted children, children born out of wedlock, and children conceived but not born until after the death.

If the person who died was not currently married but has children, the children inherit the entire estate in equal amounts. If there are no children the estate then goes to the decedent’s parents equally, or if one has passed, then to the surviving parent. If there are no parents, the estate goes to their brothers and sisters or the children of their brothers and sisters equally. In other words, if the decedent had a brother and sister, but the sister died leaving two children, the brother would inherit half the estate and the sister’s children would each inherit one-quarter of the estate. If the brother or sister are only half siblings, those half siblings only receive half as much as whole siblings (although if there are only half-siblings, they all take equally). If there are no brothers and sisters or descendants of brothers and sisters, then the estate is split between the father’s side of the family and mother’s side of the family with each side receiving one half to be distributed in the following order: grandfather and grandmother equally, or to the survivor; then to uncles and aunts equally, or if deceased to their children. If there are no survivors on one of the sides of the family (either the father or mother’s side), then the other side receives the whole of the estate to be distributed as set out above.

If there are no descendants on the paternal and the maternal side, then the entire estate goes to the family of the last deceased spouse, if there was one, in the same sequence as set out above. In other words, the court will give all the assets to the last deceased spouse as if the last deceased spouse survived the person who died and then distribute the assets as if the deceased spouse had died intestate.

If there are no heirs under the above sequence, the estate goes to the State to be deposited into the State’s School Fund.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of four law books: (“Basics of Business Law” “Basics of Florida’s Small Claims Court”, “Basics of Florida’s Landlord/Tenant Law” and “Basics of Starting a Florida Business” (Absolutely Amazing e-Books)). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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