Who Inherits Without a Will

Most people have a Will or a Revocable Trust directing disposition of assets when they die. Many set up financial accounts that are payable on death to a chosen beneficiary. But there are others who die before making such arrangements. What happens to their assets?

Contrary to popular belief, the assets of a person dying without a Will do not go to the State. Assets for which disposition is not provided in a Will or a Will substitute are known as intestate assets. Intestate simply means assets that pass without a Will. Instead of going to the State, intestate assets pass to heirs under Florida Statutes. Statutes set a plan for distribution that the legislature thinks a typical person would be most likely to intend and which also promotes Florida’s public policy. That means both spouse and children are included in the plan.

Distribution is per stirpes, which means if someone is dead at a certain level but leaves living children (decedent’s child is dead but leaves grandchildren of decedent) the survivors at the lower level take the share of their parent.

How much of an intestate estate goes to the surviving spouse is based in part on the existence of children. If the decedent has no descendants or all of the decedent’s descendants are also descendants of the surviving spouse (say that real fast!), the surviving spouse gets everything. If the decedent had descendants who are not also descendants of the surviving spouse, the surviving spouse gets one-half of the intestate estate. 

Not everyone dies married. If there is no surviving spouse, the statutes direct distribution first be made down the family tree to children, grandchildren and even great-grandchildren. If there are no descendants, distribution starts up the family tree to the decedent’s parents and if none survive then to the decedent’s brothers and sisters and the descendants of a deceased brother or sister. If none, distribution moves up to the grandfather and grandmother level and then out to uncles and aunts and descendants of deceased uncles and aunts. Sometimes the beneficiaries are hard to locate and may be referred to in the popular press as “long-lost.” They are not really lost, they are just not close to the decedent.

The statute even addresses after born heirs. Heirs of a decedent conceived before his or her death but born after death inherit intestate property as if born during the decedent’s lifetime. A whole new world is opened with the introduction of in vitro fertilization and the ability to store sperm and eggs for future use. The intestate statutes do not provide for distribution to a child conceived after death of the decedent using a frozen embryo or sperm. Such a child would not qualify as an heir since an after born heir must be conceived before death of the decedent.

A recent Florida case helped a federal court determine eligibility for Social Security benefits when a child was conceived after the decedent’s death using frozen sperm. That case revolved around a different set of statutes which determine legal parentage. Because of the unique nature of stored sperm and embryos the statute also addresses inheritance. 

Section 742.17 Florida Statutes is titled “Disposition of eggs, sperm, or pre-embryos; right of inheritance” and it does what it says. The statute addresses ownership of eggs, sperm and pre-embryos but also states “A child conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or pre-embryos to a woman’s body shall not be eligible for a claim against the decedent’s estate unless the child has been provided for by the decedent’s Will.” That statute was examined by the Florida Supreme Court inSteele v. Commissioner of Social Security.

Kathleen Steele and her husband had a child conceived through in vitro fertilization. After the conception, Mr. Steele arranged for storage of additional sperm samples at a fertility clinic. Mr. Steele died before any of the samples were used. Mr. Steele’s Will left everything to his wife but left assets to his children “then living” if she died before him.

After Mr. Steele’s death, Kathleen Steele used the stored samples to conceive another child. After the child was born, Kathleen Steele sought survivor Social Security benefits for the child under Mr. Steele’s account. Her application was denied. Undeterred, she pursued an administrative appeal, which was denied. She filed suit in federal court and lost and on appeal of that decision the appellate court asked the Florida Supreme Court to interpret the statute.

The federal court thought the arguments of Kathleen Steele and Social Security Administration were both reasonable. Kathleen Steele argued that the phrase “unless the child has been provided for by the decedent’s Will” meant the child inherited his share of the decedent’s property intestate unless the child was provided for in the Will. The SSA argued the statute limited the rights of the child to property devised in the decedent’s Will.

Florida’s Supreme Court took a commonsense approach. It consulted dictionaries. One dictionary defined “provide” as “to make preparation to meet a need… to supply something for sustenance or support.” Another  dictionary defined provide as “supply means of subsistence.” From dictionaries, the court concluded that “provided for” meant giving something to someone.

The court then looked at its own decisions. One decision interpreted a statute that provided for a spouse to obtain a share of a decedent’s estate when the decedent’s Will was written before marriage and did not leave anything to the spouse. The court explained that statute was to protect a spouse from “inadvertent disinheritance.” That statute states that it does not apply if the surviving spouse is “provided for” in the pertinent Will and the court had interpreted “provided for” in that context to mean the decedent included  distribution to the spouse in a Will executed before marriage and the provision was made in contemplation of marriage. The court thought that directly relevant, since to provide for a child conceived after one’s death a person would have to think about a post-death conceived child to provide for the child in a Will.

The Florida Supreme Court agreed with the Social Security Administration. Mr. Steele’s Will did not provide for the child and no part of the Will acknowledged  the possibility of a child being conceived after his death.

Florida statutes provide for distribution if someone dies without a Will, but that distribution is as determined by someone unfamiliar with the decedent. It is better than leaving everything to the State, but also lacks the insight a person can bring to a person’s own estate plan. Nonetheless, where there is no Will there is still a way.