Homestead Property and Florida Probate: How Your Home Passes (and Why It Often Doesn’t Follow the Will)

In Florida, homestead property is a decedent’s primary residence that enjoys special constitutional protection from creditors and is subject to strict rules on who can inherit it. When a person dies owning Florida homestead, the home generally passes outside the ordinary probate estate and descends according to the Florida Constitution and Chapter 732 of the Florida Statutes — which means it frequently does not pass the way the decedent’s will directs. Understanding that distinction is the difference between a clean transfer of title and years of contested litigation.

I have watched more Palm Beach County families fight over a house than over any bank account, brokerage statement, or business interest. The reason is rarely greed. It is that homestead law in Florida is genuinely counterintuitive, and the people drafting wills (sometimes the lawyers who drafted them) treat the family home like any other asset. It is not. Below is how the home actually moves through a Florida probate, where the traps are, and what a surviving spouse, a child, or a guardian stepping into a probate should be watching for.

What Makes a Property “Homestead” for Probate Purposes

Florida uses the word “homestead” in three different legal contexts, and conflating them is the first mistake people make. There is the tax homestead (the exemption and the Save Our Homes assessment cap), the creditor-protection homestead, and the descent and devise homestead that controls who inherits. They overlap but are not identical, and a property can qualify for one and not another.

For probate, the controlling authority is Article X, Section 4 of the Florida Constitution, supplemented by Florida Statutes sections 732.401 and 732.4015. To qualify, the property must have been the decedent’s permanent residence and must fall within the constitutional acreage limits — up to one-half acre inside a municipality, or up to 160 contiguous acres outside one. The owner must have been a Florida resident, and the residence must have been the place they actually intended to remain.

Two features of homestead status drive everything that follows:

• Creditor protection survives death. If the property was protected homestead during life, it generally passes to qualifying heirs free of the decedent’s general creditors — credit cards, judgments, medical bills, and the like. The protection inures to the heirs.
• Homestead usually passes outside the probate estate. Title typically vests in the heirs at the instant of death by operation of law, not by the personal representative’s deed. The personal representative often has no power to sell it or use it to pay claims.

This last point catches families and even creditors off guard. A judgment creditor who assumes the house is fair game during probate frequently learns that the homestead is untouchable in the heirs’ hands.

The Devise Restrictions: Why the Will May Not Control

Here is the rule that produces the most litigation in our office: you cannot freely leave your Florida homestead to whomever you want if you are survived by a spouse or a minor child.

Article X, Section 4(c) of the Constitution prohibits the devise of homestead when the owner is survived by a spouse or minor child, with one narrow exception — the homestead may be devised to the surviving spouse if there is no minor child. Any attempt to devise the homestead in violation of this rule is simply void. The will provision fails, and the property instead descends under section 732.401 as though there had been no valid devise.

Consider a common Palm Beach scenario. A widower with two adult children remarries late in life and signs a will leaving the house to his children “to keep it in the family.” He is survived by his new spouse. Because he has a surviving spouse, he could not devise the homestead to the children. The devise is void. The home does not go to the children outright — it descends under the statute, which gives the surviving spouse rights the children never anticipated. The “keep it in the family” plan collapses precisely because it ignored the constitutional restriction.

One important caveat: if there is no surviving spouse and no minor child, the devise restrictions disappear, and the owner may leave the homestead to anyone. An adult child alone does not trigger the restriction. The constitutional protection runs to spouses and minor children, not adult descendants.

How Homestead Descends Under Section 732.401

When the devise restrictions apply (or when the owner dies intestate), Florida Statutes section 732.401 controls who takes the home. The outcome turns on the family configuration at death.

Surviving Spouse and Descendants

If the decedent is survived by a spouse and one or more descendants, the default rule under section 732.401(1) gives the surviving spouse a life estate in the homestead, with a vested remainder to the descendants in being at the time of death, per stirpes. The spouse can live in the home for life; the descendants own what is left when the spouse dies.

That default sounds tidy but tends to break down in practice. A life tenant is responsible for taxes, insurance, and ordinary maintenance, while the remaindermen hold an interest they cannot use or sell. Disputes over a leaking roof, an unpaid tax bill, or a spouse who wants to move into assisted living are routine — and they are exactly the kind of conflict that lands in front of a Palm Beach probate judge.

The Spousal Election to Take One-Half

Recognizing how unworkable a life estate can be, the Legislature added section 732.401(2): the surviving spouse may elect to take an undivided one-half interest as a tenant in common instead of the life estate, with the other one-half passing to the descendants per stirpes. This converts a use-only interest into outright ownership of half the equity — often a far better outcome if the spouse intends to sell.

The election is time-sensitive and procedural, and missing the mechanics forfeits the right:

1. The election must be made within six months after the decedent’s death and during the surviving spouse’s lifetime.
2. It is made by filing a notice of election containing the legal description of the homestead for recording in the official records of the county where the property sits.
3. If a guardian, attorney-in-fact, or similar fiduciary makes the election on behalf of an incapacitated spouse, the court must approve it as being in the spouse’s best interests over the spouse’s probable lifetime.

That third item is where our firm’s editorial focus — contested guardianship-to-probate transitions — collides directly with homestead law. When a surviving spouse is under guardianship, the guardian must petition the court to make the election, and the judge weighs the spouse’s likely lifespan, the value of the home, and the spouse’s financial needs. Adult children who are remaindermen often oppose the election, because every dollar the spouse takes as a one-half owner is a dollar out of their remainder. These fights are sharp, fact-intensive, and worth getting right the first time.

No Surviving Spouse

If there is no surviving spouse, the homestead descends to the decedent’s descendants (or, absent descendants, under the intestacy rules), still cloaked in its creditor protection. And again, with no spouse and no minor child, the owner is free to devise the homestead by will.

Getting Homestead Status Determined in Probate

Because the homestead passes outside the probate estate, its status must usually be confirmed by the court. The personal representative or an interested party files a petition to determine homestead status of real property. The judge enters an order declaring that the property was the decedent’s protected homestead, identifying the heirs in whom title vested, and confirming that the home is not subject to the claims of the decedent’s creditors.

That order is what title companies and future buyers rely on. Skipping it — or assuming a recorded deed alone is enough — leaves a cloud on title that surfaces, predictably, at the worst possible moment: a contract closing. If you are not certain whether a property qualifies, this is the threshold question to resolve before anything else. (If you are weighing whether a homestead determination or a full administration is the right path, our overview of Florida probate administration walks through the options.)

Creditors, the One Exception, and Common Traps

The creditor protection is strong but not absolute. The Constitution itself carves out three categories of obligations that can reach the homestead: (1) taxes and assessments on the property, (2) obligations contracted for the purchase, improvement, or repair of the property — your mortgage, in other words — and (3) obligations contracted for labor or materials used to improve the property, such as a contractor’s lien. A mortgage does not vanish at death; the heir who takes the home takes it subject to the loan.

A few recurring traps worth flagging:

• Joint tenancy and survivorship deeds. If the home is titled with rights of survivorship, it may pass to the co-owner outside both the will and the homestead descent rules — sometimes defeating the very plan the decedent intended.
• Putting the homestead in a revocable trust. This can work, but it does not let you escape the spousal and minor-child devise restrictions. A trust that tries to do what a will cannot is just as void.
• Assuming “exempt property” covers the house. The separate exempt-property allowance under section 732.402 (household furnishings, two vehicles, certain other items) is unrelated to homestead and does not change who inherits the home.
• Out-of-state planning. A will or trust drafted in another state, by a lawyer unfamiliar with Article X, frequently mishandles Florida homestead. We see this constantly in a county full of transplants.

Homestead Disputes in a Guardianship-to-Probate Posture

The most difficult homestead cases I handle begin in guardianship and end in probate. An aging spouse is placed under guardianship; the other spouse dies; and the guardian must now decide whether to make the one-half election, defend the homestead from creditors, or sell to fund the ward’s care. Each of those moves requires court approval, and each can be contested by remainder beneficiaries with opposing financial interests.

The key is to think several moves ahead. The election decision, the homestead determination, and any proposed sale should be coordinated as a single strategy rather than litigated piecemeal. A guardian who files a one-half election without first analyzing the ward’s life expectancy and care costs can do real damage that is difficult to undo. If a guardianship matter is heading toward this transition, our probate and guardianship team can map the sequence before deadlines start running.

How Florida Compares — and Why Jurisdiction Matters

Florida’s homestead protections are among the most generous in the country, and they behave very differently from probate in other states. New York, for example, has no comparable constitutional homestead descent regime; there, the family residence is generally administered as part of the estate and distributed under the will or the intestacy statute. If you are coordinating an estate that touches both states, it helps to see how the other jurisdiction handles the home — Morgan Legal’s New York team explains the mechanics in its guide to the , and the differences between . For Florida-side homestead questions specifically, Morgan Legal’s handles these determinations regularly.

The practical takeaway: do not assume a homestead-style protection exists, or doesn’t, based on what you’ve heard about another state. The home is the asset most likely to be governed by local rules you didn’t expect.

Practical Steps If You Are Facing This Now

If you are a surviving spouse, an adult child, or a guardian dealing with a Florida home in probate, a short checklist keeps you out of the worst trouble:

1. Confirm whether the property actually qualifies as constitutional homestead before relying on any will provision.
2. Identify the family configuration at the date of death — spouse, minor children, adult descendants — because that controls everything.
3. If you are the surviving spouse, calendar the six-month election deadline immediately and decide, with counsel, between the life estate and the one-half interest.
4. File a petition to determine homestead status so title is clean.
5. Account for the mortgage and any construction liens — those follow the house.

Homestead is where Florida probate is least intuitive and most consequential. Getting the analysis right early is far cheaper than unwinding a void devise or a missed election after the fact. If you would like a review of how a specific home will pass, or you are preparing an estate plan that includes Florida real estate, our estate planning and wills resources are a good starting point, and we are glad to walk Palm Beach families through the specifics.

Frequently Asked Questions

Does Florida homestead property go through probate?

Usually only in a limited way. Florida homestead generally passes outside the probate estate and vests in qualifying heirs at the moment of death by operation of law, free of the decedent’s general creditors. However, the court typically must still enter an order determining homestead status to confirm who took title and to clear the property for sale or transfer.

Can I leave my Florida home to my children in my will if I have a spouse?

No, not if you are survived by a spouse. Article X, Section 4 of the Florida Constitution prohibits devising homestead away from a surviving spouse or minor child. The only exception is leaving it to the surviving spouse when there is no minor child. A devise that violates this rule is void, and the home instead descends under Florida Statutes section 732.401 — typically a life estate to the spouse with a remainder to the descendants.

What is the surviving spouse's election on Florida homestead?

Under section 732.401(2), instead of taking the default life estate, the surviving spouse may elect to receive an undivided one-half interest in the homestead as a tenant in common, with the other half passing to the decedent’s descendants. The election must be made within six months of death by recording a notice of election, and if a guardian or agent makes it for an incapacitated spouse, the court must approve it as being in that spouse’s best interests.

Are creditors able to reach Florida homestead after death?

Generally no. Homestead protection inures to qualifying heirs, shielding the home from the decedent’s general creditors such as credit cards and judgments. The constitutional exceptions are property taxes and assessments, mortgages and other purchase or improvement obligations, and construction liens for labor or materials. An heir takes the home subject to any existing mortgage.

What happens to homestead when there is no spouse and no minor children?

The constitutional devise restrictions no longer apply, so the owner may leave the homestead to anyone by will. If there is no will, it descends to the decedent’s descendants under the intestacy rules. In either case, the property generally retains its creditor protection in the hands of qualifying heirs.