The Florida Legislature made changes to the “Intestacy Laws” effective October 1, 2011. The law subject of this article is FS 732.102 called spousal share of intestate assets. The Intestacy laws apply to those persons who die without a will or trust directing how assets are to be distributed upon death or the assets are not transferred by operation of law or by contract. An easy example of assets transferred by operation of law is Florida real property where title is held as joints tenants with rights of survivorship or as tenants by the entirety (translation tilted as husband and wife). Upon the death of one owner, the property is transferred to the surviving joint owner or surviving spouse upon recording a death certificate. Other documents may be required to be recorded as well but that is for another discussion. Examples of assets transferred by contract are a bank account (certificate of deposit, checking or savings account) jointly owned with another or beneficiaries are designated upon the death of all account holders. Another example of assets transferred by contract is a life insurance policy. In the case of the bank account, upon presenting the bank with a certified copy of the death certificate of the joint owner, the decedent’s name is removed from the bank account and now the surviving joint tenant is the sole owner. Insurance policies are treated similarly, although typically, an insurance company requires a claim form to be completed as well.
So what happens when you die owning assets in your own name and there are no beneficiaries who receive by operation of law or are named in a contract? They are subject to the intestacy laws. Until October 1, 2011, the surviving spouse received the first $60,000 and the balance split 50/50 between surviving spouse and the decedent’s descendants. Descendants are children. Effective October 1, 2011, the surviving spouse receives all intestate assets (a probate proceeding is usually required to transfer the assets) if there are no surviving children of the decedent. If there are surviving children but all of them are children of the surviving spouse, all assets go to the surviving spouse still. If the surviving children are descendants only of the decedent (and not the surviving spouse) then 50% to the surviving spouse and the surviving children split the other 50%. If the surviving children are descendants of the decedent and the surviving spouse, but surviving spouse has her living descendants of her own as well then 50% to the surviving spouse and the surviving children of the decedent split the other 50%.
Sounds complicated? It can be!! You may have other issues in your family that you need to address as well. More importantly, the laws change. Is your estate plan up to date? A review of your plan (or lack thereof) by a lawyer who understands estate planning and probate is necessary to determine if your wishes are being satisfied by your documents.