Florida Homestead and Probate: What the Constitution Says About Your Home

Florida homestead law is unlike anything in most other states. The Florida Constitution provides extraordinary protection for the family home - shielding it from almost all creditors and ensuring it passes to the surviving spouse and children. But these protections come with restrictions that many families do not expect.

Here is the surprise that catches people off guard: if you have a spouse or minor children, you cannot leave your Florida homestead to whoever you want. The constitution dictates who inherits, and your will cannot change that. Without a valid will, the home passes according to Florida intestate succession laws.

This guide explains how Florida homestead works in probate, what protections it provides, and what limitations it creates for estate planning.

What Makes Property "Homestead" in Florida?

Under Article X, Section 4 of the Florida Constitution, homestead property is the primary residence of a Florida resident. Several requirements must be met.

Ownership Requirements

The property must be owned by a natural person (not a corporation, LLC, or partnership)
The owner must be a Florida resident
The property must be the owner's primary residence (where they intend to live permanently)

Size Limitations

The constitutional protection applies to:

Within a municipality: Up to one-half acre of contiguous land

Outside a municipality: Up to 160 contiguous acres

If the property exceeds these limits, only the portion within the limits receives protection.

What Types of Property Qualify

Homestead can include:

Single-family homes
Condominiums
Townhouses
Mobile homes (if permanently affixed to owned land)
Multi-family buildings if the owner lives in one unit
Mixed-use properties if the owner resides on the property

What does NOT qualify:

Rental properties
Vacation homes
Investment real estate
Property owned by business entities
Property where the owner is not a Florida resident

The Three Constitutional Protections

Florida homestead provides three distinct protections under the constitution.

Protection 1: Creditor Exemption

Homestead property is exempt from forced sale to satisfy debts. Creditors cannot take your home to pay what you owe.

This protection is nearly absolute. Credit card companies, medical providers, lawsuit judgments, and most other creditors cannot touch the homestead. There is no dollar limit on the value protected.

Exceptions (creditors who CAN reach homestead):

Mortgage lenders (the bank that financed your home purchase)
Property tax collectors
Contractors with valid mechanics' liens for work on the property
Homeowners' association liens in some circumstances

This protection survives death. When the homeowner dies, creditors of the estate still cannot force the sale of homestead to pay debts. The home passes to the family even if the estate is insolvent.

Protection 2: Property Tax Exemption

Homestead property qualifies for a property tax exemption:

Up to $25,000 exemption applies to all property taxes
An additional exemption up to $25,000 applies to non-school taxes (for homes valued over $50,000)
Total maximum exemption: $50,000

This exemption must be applied for with the county property appraiser. The deadline is typically March 1 for the following tax year.

Protection 3: Restrictions on Transfer (Descent and Devise)

Here is where things get complicated for estate planning. The Florida Constitution restricts how homestead can be transferred if the owner is survived by a spouse or minor children.

If there is a surviving spouse: The owner cannot devise (give by will) the homestead to anyone other than the spouse.

If there are minor children: The homestead descends as provided by law - the constitution prevents it from being devised away from the children.

These restrictions exist to protect the family from being disinherited from the family home. But they also limit the owner's control over who ultimately receives the property.

How Homestead Passes at Death

Florida Statutes Section 732.401 specifies how homestead descends depending on family circumstances.

Scenario 1: Surviving Spouse, No Descendants

If the owner dies survived by a spouse but no descendants (children, grandchildren, etc.), the surviving spouse inherits the homestead outright in fee simple.

The spouse receives full ownership. They can live there, sell it, or give it away.

Scenario 2: Surviving Spouse AND Minor Children

If the owner dies survived by a spouse and at least one minor child (under 18), the homestead descends as:

Surviving spouse: Life estate (right to live in the home for life)
Minor children: Vested remainder interest (ownership when the life estate ends)

The spouse can live in the home but cannot sell it without court approval. The children will eventually receive ownership when the spouse dies, remarries, or abandons the property.

This can create difficulties. The surviving spouse may need to sell to downsize, relocate, or access equity. But they cannot do so without involving the minor children's interests, which typically requires court supervision and possibly a guardian ad litem.

Scenario 3: Surviving Spouse AND Only Adult Children

If the owner dies survived by a spouse and only adult children (no minor children), the default descent is:

Surviving spouse: Life estate
Adult children: Vested remainder interest

However, the surviving spouse can make an election under Florida Statutes Section 732.401(2). Within six months of the owner's death, the spouse can choose to take:

An undivided one-half interest as tenant in common with the descendants, OR
The life estate

This election gives the spouse flexibility. A tenant in common interest allows the spouse to force a partition sale if they need to access equity.

Scenario 4: Descendants Only (No Surviving Spouse)

If there is no surviving spouse, the homestead descends to descendants under the regular rules of intestate succession (or according to the will if the descent restrictions do not apply).

The children inherit outright and can sell, divide, or keep the property as they choose.

Scenario 5: No Spouse or Descendants

If there is no surviving spouse and no descendants, the homestead loses its special constitutional protection for descent purposes. It passes according to the will or intestate succession without restriction.

The owner can leave it to anyone - siblings, parents, friends, or charities.

What Your Will Can and Cannot Do

The constitutional descent restrictions significantly limit what your will can accomplish with homestead property.

What Your Will CANNOT Do

If you have a surviving spouse:

You cannot leave the homestead to your children instead of your spouse
You cannot leave the homestead to a sibling, parent, or friend
You cannot leave the homestead to a trust that does not benefit your spouse

If you have minor children:

You cannot completely disinherit them from the homestead
They will receive at least a remainder interest

Example of a failed devise: Tom's will leaves his house to his son from a prior marriage. Tom is survived by his second wife. Despite the will, Tom's wife inherits the homestead outright (no minor children) or a life estate (if there are minor children). The son receives nothing, or at most a remainder interest.

What Your Will CAN Do

If you have only adult children and a spouse, your will can specify who receives the remainder interest after the spouse's life estate
If you have no spouse or descendants, your will can leave the homestead to anyone
Your will can address what happens if the homestead is sold (proceeds distribution)
Your will can coordinate the homestead with other estate planning

Working Around the Restrictions

If you want outcomes different from the constitutional defaults, options include:

Spouse waiver: The surviving spouse can disclaim their interest or agree to a different arrangement, but this must be voluntary and properly executed.

Spousal joinder: Both spouses can join in a conveyance (like a Lady Bird deed) that may provide more flexibility.

Children's waiver: Adult children can disclaim or waive their remainder interests.

Prenuptial or postnuptial agreements: These can modify homestead rights if properly drafted and executed under Florida Statutes Section 732.702.

Life insurance: If you want to provide for someone other than your spouse with the value of the home, use life insurance or other assets instead.

Homestead in the Probate Process

Homestead property receives special treatment in Florida probate.

Not Part of the Probate Estate for Creditors

This is a key point: homestead property is not part of the probate estate for purposes of paying creditors. Even if the estate has significant debts, creditors cannot reach the homestead.

The personal representative cannot sell the homestead to pay debts. The property passes directly to the constitutional beneficiaries.

But Still Requires Court Involvement

Even though homestead passes outside the creditor claims process, it typically still requires a court proceeding to:

Confirm the property qualifies as homestead
Identify who inherits under the constitutional rules
Clear title so the property can be sold or refinanced later

The personal representative (or an interested party) files a Petition for Determination of Homestead Status. The court enters an order that can be recorded to establish clear title.

Does Not Count Toward Summary Administration Threshold

When determining whether an estate qualifies for summary administration ($75,000 or less), homestead property is excluded from the calculation.

Example: An estate includes:

Homestead: $400,000
Bank accounts: $50,000
Personal property: $20,000

The estate qualifies for summary administration because only the non-homestead assets ($70,000) count toward the threshold.

This is a significant benefit. Many Florida estates can use the simpler, faster summary administration process even when the family home is valuable.

Common Homestead Planning Mistakes

Mistake 1: Assuming Your Will Controls Everything

If you have a spouse or minor children, your will does not control who receives the homestead. The constitution does. Many families are shocked to learn that carefully drafted estate plans fail to achieve their goals because they did not account for homestead restrictions.

Fix: Work with a Florida estate planning attorney who understands homestead law. Make sure your plan accounts for the constitutional requirements.

Mistake 2: Adding Children to the Deed to "Avoid Probate"

Parents sometimes add adult children to the deed thinking it will simplify things. This creates multiple problems:

The property may lose homestead creditor protection (children's creditors can reach their interest)
Gift tax may apply to the transfer
Children become co-owners with immediate rights
Refinancing or selling requires all owners' consent
A child's divorce, bankruptcy, or lawsuit could affect the property

Fix: Use a Lady Bird deed instead. It names beneficiaries without transferring current ownership. For more probate avoidance strategies, see how to avoid probate in Florida.

Mistake 3: Putting Homestead in a Trust Incorrectly

Homestead can be held in a revocable living trust, but it must be structured correctly:

The trust must be for the benefit of the homeowner during their lifetime
The homeowner must be a beneficiary of the trust
The constitutional descent restrictions still apply to property in trust

Improperly structured trusts may lose homestead protection.

Fix: Have a Florida attorney draft or review any trust that will hold homestead property.

Mistake 4: Not Filing for the Homestead Exemption

The property tax exemption does not apply automatically. You must file an application with the county property appraiser.

Fix: File the homestead exemption application before March 1. Check with your property appraiser if you are unsure of your status.

Mistake 5: Ignoring Homestead Issues in Blended Families

Blended families face difficult homestead situations:

A surviving spouse may receive a life estate, preventing adult stepchildren from accessing their remainder interest for decades
Minor children from a prior relationship create restrictions that affect the current spouse
The constitutional rules may produce results no one in the family wants

Fix: Plan ahead with appropriate legal tools. Consider life insurance, tenancy by the entirety ownership (gives surviving spouse the entire property), prenuptial agreements, or other structures.

Homestead and Lady Bird Deeds

A Lady Bird deed (enhanced life estate deed) can be used with homestead property to achieve certain goals:

Name beneficiaries to receive the property at death
Avoid formal probate proceedings
Retain full control during lifetime
Preserve homestead tax exemption
Maintain homestead creditor protection

However, Lady Bird deeds must respect the constitutional descent restrictions. If you have a spouse or minor children, you cannot use a Lady Bird deed to leave the homestead to someone other than the constitutional beneficiaries.

What a Lady Bird deed CAN do:

Transfer homestead to your spouse at death
Transfer homestead to your descendants at death (if no spouse)
Simplify the transfer process

What a Lady Bird deed CANNOT do:

Override the spouse's right to inherit
Disinherit minor children from homestead

For more information, see our Lady Bird deed guide.

What Happens to the Mortgage?

If there is a mortgage on the homestead when the owner dies:

The mortgage remains attached to the property
Whoever inherits the property inherits it subject to the mortgage
The mortgage lender cannot demand immediate payoff solely because of the death (protected by the federal Garn-St. Germain Act)
The new owner must continue making payments or face foreclosure

If the surviving spouse or children cannot afford the mortgage payments, they may need to sell or refinance. For details on how to handle the transfer process, see our guide on transferring property after death in Florida.

Frequently Asked Questions

Does homestead property go through probate in Florida?

Homestead goes through probate for the limited purpose of determining heirs and clearing title, but it is not part of the probate estate for creditor purposes. The property passes directly to constitutional beneficiaries and is protected from estate creditors.

Can I leave my Florida home to anyone I want?

Only if you have no surviving spouse or minor children. If you do have a spouse or minor children, the Florida Constitution dictates who inherits the homestead. Your will cannot override these rules.

What if my spouse and I own the home jointly?

If you own the home as tenants by the entirety (the default for married couples buying property together in Florida), the surviving spouse automatically owns the entire property when the first spouse dies. No probate is needed for this transfer, and the constitutional descent restrictions do not apply.

Does homestead protection apply to my rental property?

No. Homestead protection only applies to your primary residence. Rental properties, vacation homes, and investment properties receive no homestead protection for creditors or descent purposes.

Can I sell my homestead if I have minor children?

If you are alive, yes - you can sell your own homestead. The restrictions on transfer apply only at death. While living, you have full control to sell, mortgage, or transfer your homestead.

What happens if the surviving spouse wants to sell the homestead but the children have a remainder interest?

The spouse with a life estate generally cannot sell without the agreement of the remainder holders (or court approval). If the children are minors, court approval and guardian ad litem involvement are typically required. This is one of the complications that makes planning important.

Next Steps

Florida homestead law is complex, and getting it wrong can have significant consequences for your family. Here is what to do:

Understand your current ownership - How is your home titled? Do you have homestead exemption filed?
Consider your family situation - Do you have a spouse? Minor children? Children from prior relationships?
Review your estate plan - Does your will account for homestead restrictions?
Consult an attorney - Florida homestead law has nuances that require professional guidance

Find county-specific probate information in our Florida probate directory.

For related topics, see our guides on Florida intestate succession and exempt property in probate.

Sources:

Florida Constitution, Article X, Section 4 (Homestead Exemption)
Florida Statutes Section 732.401 (Descent of Homestead)
Florida Statutes Section 732.4015 (Devise of Homestead)
Florida Statutes Section 732.702 (Waiver of Spousal Rights)
Florida Statutes Section 196.031 (Homestead Tax Exemption)

This guide provides general information about Florida homestead and probate. Homestead law is complex, and every situation is different. Consult a licensed Florida attorney for your specific circumstances.

Last updated: January 2026