State of Florida




The laws of intestacy under the state of Florida, states that a decedent that dies without a will, but leaves behind both a surviving spouse and issue and the issue, all of whom are also children of that spouse and that the spouse has no other issue from any previous unions, the spouse respectfully inherits the entire estate. Had the spouse have prior children, her inheritance would have been ½ of the estate. (Florida Stat.Ann. §732.102 (2) [West 2011]).  In comparison to New York’s EPTL Section 4-1.1(1) where the laws differ, a decedent that dies with both the surviving spouse and issue, the spouse receives the first $50,000 and one half of the residue while the issue inherit the balance of that estate equally. New York’s law does not affect how the property is distributed based on if the spouse has prior children neither does it allow for the spouse to inherit the entire estate when there are descendants of that marriage.


In the state of Florida, if a decedent dies intestate, but dies with a surviving spouse and no issue, according to Florida Stat.Ann. §732.102 (1) [West 2011]), the spouse receives the entire intestate estate. This law, which is similar to New York’s EPTL Section 4-1.1 (2) also states that the surviving spouse of the decedent inherits the entire estate.


In Florida, a person who dies without a will, with no surviving spouse nor issue, the intestate estate rightfully passes to the surviving parents of the decedent, if there is no surviving parent, the estate goes to the brothers/sisters of that decedent. (Florida Stat.Ann. §732.103 (2) [West 2007]). Florida’s intestate law, which is similar to New York’s EPTL section 4-1.1 (4) also inherits the parents of the estate of the decedent if they are no spouse or issue at time of death.



Testamentary capacity in the state of Florida requires that the person must 18 years old or older, or being an emancipated minor. (Florida Stat.Ann. §732.501[West 2002]). As well is in New York, EPTL Section 3-1.1 also states that a person has to be 18 or over to make a valid will.


Florida’s statutes state that for a will to be duly executed, along with the other requirements, the will must be signed, acknowledged or the testator must state if they have previously signed the will in the presence of at least two attesting witnesses. (Florida Stat.Ann. §732.502 [West 2003]). Florida’s law, in similarity with New York’s EPTL section 3-1.1 also requires the will to be signed in the presence of at least two witnesses as well.


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