If you own property in Florida, have children, or care who ends up with your belongings, you need a will. Florida’s default rules for people who die without one are rigid, and a few of them, especially the homestead restrictions, catch families off guard in ways that are hard to fix after the fact. So the honest answer to whether you need a will in Florida is yes for most adults, and the reasons go well beyond simply naming who gets what.
What Happens If You Die Without a Will in Florida
Dying without a will means your estate passes through “intestate succession,” a statutory formula based purely on family relationships. It ignores your preferences, your closeness to individual relatives, and any promises you made during your lifetime. Friends, unmarried partners, and charities get nothing.
How much your surviving spouse receives depends on the children involved:
- No descendants: your spouse inherits everything.
- All descendants are shared with your spouse, and your spouse has no other children: your spouse inherits everything.
- You have descendants who are not your spouse’s descendants: your spouse gets half, your descendants split the other half.
- All descendants are shared with your spouse, but your spouse has children from another relationship: your spouse gets half, your descendants split the other half.1Justia Law. Florida Code 732.102 – Spouse’s Share of Intestate Estate
That last rule surprises people. Even when every one of your children is also your spouse’s child, your spouse only takes half if they have any child from a prior relationship.
With no surviving spouse, the estate passes in a fixed order: descendants first, then parents, then siblings and their descendants.2FindLaw. Florida Code 732.103 – Share of Other Heirs If none of those exist, the estate moves to more distant relatives, and in rare cases to the state. A will lets you bypass the entire hierarchy.
The Homestead Rule That Limits Every Florida Will
Florida’s constitution protects your primary residence from most creditors and caps its property taxes, but those protections come with a restriction that a will cannot override. If you are survived by a spouse or a minor child, you generally cannot leave your homestead to anyone other than your spouse.3FindLaw. Florida Constitution Article X Section 4 – Homestead Exemptions
If you have a minor child, you cannot devise the homestead at all, not even to your spouse. If you have a surviving spouse but no minor children, you may devise it to your spouse but to nobody else.4FindLaw. Florida Code 732.4015 – Devise of Homestead A will that tries to leave the house to an adult child, a sibling, or a friend while a spouse or minor child survives you will fail on that point, no matter how clearly you wrote it.
When the homestead cannot be devised, the surviving spouse typically receives a life estate with the descendants taking the remainder, or the spouse may elect an undivided half interest as tenant in common. Knowing this rule early lets you plan around it, often with a trust, life insurance, or other non-probate transfers.
You Cannot Fully Disinherit a Spouse
A Florida spouse has the right to claim an “elective share” equal to 30 percent of the elective estate.5Online Sunshine. Florida Code 732.2065 – Amount of the Elective Share The elective estate is broader than the probate estate and reaches into certain trusts, joint accounts, and other transfers. If your will leaves your spouse less than that 30 percent, your spouse can file a claim for the difference within six months of receiving notice of administration.
This matters most in second marriages, where a will meant to protect children from a first marriage can be partially undone by the elective share. A prenuptial or postnuptial agreement can waive it, but only in writing and with proper formalities.
What a Florida Will Actually Controls
A will governs your “probate estate,” meaning property that does not already have a built-in transfer mechanism. That includes real estate titled solely in your name, bank accounts with no payable-on-death beneficiary, vehicles, personal belongings, and business interests. Life insurance with a named beneficiary, retirement accounts, and jointly held property with survivorship rights pass outside the will.
Beyond dividing property, a will does several things Florida families rely on.
Naming the Person Who Runs Your Estate
Your will names your personal representative, the person responsible for gathering assets, paying debts and taxes, and distributing what remains. Without a will, the court picks someone from a statutory priority list.
Florida also restricts who can serve if they live out of state. A non-Florida resident qualifies only if they are your spouse, sibling, parent, child, or other relative by blood or adoption, or the spouse of such a relative.6Online Sunshine. Florida Code 733.304 – Nonresidents A trusted friend or business partner living in another state cannot serve unless they fit one of those categories. Check the list before you name anyone.
Nominating a Guardian for Your Kids
If you have minor children, your will is the primary place to tell a court who should raise them if both parents die. Florida lets parents file a written declaration naming a “preneed guardian,” and that nomination can sit inside your will.7FindLaw. Florida Code 744.3046 – Preneed Guardian for Minor Without it, a judge picks the guardian, which invites disputes and delay.
Creating Trusts That Kick In at Death
A will can set up testamentary trusts that come into existence when you die. These are useful when a beneficiary shouldn’t receive a lump sum, such as a young child or someone who struggles with money. The trust specifies when and how distributions happen and names a trustee to manage the money.
Giving Access to Your Digital Accounts
Under Florida’s Fiduciary Access to Digital Assets Act, your personal representative can manage your digital accounts, but the reach of that authority depends on what you put in writing. Explicit consent in your will or trust lets them access the content of emails and messages; without it, platforms can refuse to hand over anything beyond basic account information.8Online Sunshine. Florida Code Chapter 740 – Fiduciary Access to Digital Assets Act Directions set through a platform’s own tool take top priority, then instructions in a legal document, then the platform’s terms of service.
What Makes a Florida Will Valid
Florida is strict about formalities. A document that misses any of them is invalid, no matter how clearly it expresses your wishes.
- You must be at least 18 (or an emancipated minor) and of sound mind.
- The will must be written. Typed or handwritten is fine, but purely handwritten wills without witnesses (holographic wills) are not valid in Florida, and neither are oral wills.
- You must sign at the end. If you physically cannot sign, someone else can sign for you, in your presence and at your direction, but that person cannot also serve as a witness.
- Two witnesses must watch you sign, or hear you acknowledge your signature, and then sign the will themselves in your presence and in each other’s presence.
One trap for people moving here: Florida will accept an out-of-state will that was validly executed under the laws of the state where it was made, but it will not honor a holographic or oral will from another state.9Florida Senate. Florida Code 732.502 – Execution of Wills An unwitnessed handwritten will you brought with you from a state that allowed them is not valid here.
Making Your Will Self-Proving
A self-proving affidavit is optional but worth adding. You and your two witnesses sign a sworn statement before a notary confirming the will was properly executed. That lets the will be admitted to probate without hunting down the witnesses years later.10FindLaw. Florida Code 732.503 – Self-Proof of Will You can add it when you sign or any time afterward. Florida also permits online notarization for this purpose.
How Marriage, Divorce, and New Children Change Your Will
These life events do not automatically revoke a Florida will, but they alter how it works, sometimes drastically.11Florida Senate. Florida Code 732.507 – Effect of Subsequent Marriage, Birth, Adoption, or Dissolution of Marriage
After a divorce, Florida automatically voids every provision in your will that benefits your former spouse. The will is read as though the ex-spouse died at the time of the divorce, removing them as beneficiary and as personal representative. It does not remove your ex-spouse’s relatives, though, such as stepchildren you may have included.
If you marry after signing a will and never update it, your new spouse becomes a “pretermitted spouse” and takes whatever they would have received under intestacy rules, as if you had no will at all.12Justia Law. Florida Code 732.301 – Pretermitted Spouse The exceptions are narrow: the will already provided for the spouse, a prenup or postnup covers it, or the will explicitly says you did not want to provide for them.
A child born or adopted after you sign your will may have similar pretermitted rights, taking an intestate share. Treat any of these events as a signal to update the document rather than trust the defaults.
The Other Documents That Belong With Your Will
A will handles what happens after death. It does nothing for you during a medical crisis or period of incapacity, which is why most Florida estate plans include a few other documents.
A revocable living trust lets you transfer assets into a trust during your lifetime and distribute them at death without probate, which is faster and more private. It is especially useful if you own real estate in more than one state. A trust does not replace a will, though; you still need a “pour-over” will to catch anything you never transferred into the trust.
A durable power of attorney authorizes someone to manage your finances if you become incapacitated. For the authority to survive your incapacity, the document must include the specific language required by Florida law.13Online Sunshine. Florida Code Chapter 709 – Power of Attorney Without one, your family may have to seek a court guardianship, which is slow and expensive.
A healthcare surrogate designation names someone to make medical decisions for you when you cannot. Florida requires two adult witnesses, and the surrogate cannot be a witness; at least one witness must not be your spouse or blood relative.14Justia Law. Florida Code 765.202 – Designation of a Health Care Surrogate You can make the surrogate’s authority effective immediately rather than waiting for a formal finding of incapacity.
A living will states your wishes about life-prolonging treatment if you develop a terminal condition, an end-stage condition, or enter a persistent vegetative state. It follows the same witness rules as the surrogate designation.15Justia Law. Florida Code 765.302 – Procedure for Making a Living Will It spares your family from guessing what you would want at the worst possible moment.