Florida · General rules
The Florida homestead rules, stated for every situation
What Florida's constitution and statutes provide for a homestead — while the owner lives, and after a death — stated generally and cited. Nothing on this page asks about your situation or applies a rule to it.
While the owner lives: planning a will or trust
The situations Florida law provides for, and the rule for each.
What counts as a Florida homesteadFla. Stat. § 222.17
A homestead is the permanent residence of a Florida resident - the home the owner actually lives in, up to the acreage the constitution sets. A second home, a rental, or property the owner does not live in is not a homestead. Three distinct protections attach while the owner lives: the property-tax exemption and assessment cap, protection from forced sale by most creditors, and the restrictions on devise and alienation when a spouse or minor child survives.
When the owner is survived by a spouse or a minor childFla. Stat. § 732.4015
The constitution restricts the devise of a homestead. With a surviving minor child, the homestead may not be devised at all, whatever a will or trust says. With a surviving spouse and no minor child, it may be devised only to that spouse, and only outright, in fee simple.
When a devise is not permittedFla. Stat. § 732.401
The homestead descends by law: a life estate to the surviving spouse, with a vested remainder to the owner's descendants living at the owner's death. In place of the life estate, the surviving spouse may elect, within the time the statute sets, to take an undivided one-half interest as a tenant in common with the descendants. With no surviving spouse, the homestead descends to the descendants.
A devise in trust for a spouseFla. Stat. § 732.4015
The statute permits a homestead devise to the surviving spouse. Florida courts have treated a devise of the homestead in trust for the spouse as something other than a devise to the spouse, so the outright-versus-in-trust distinction decides whether such a devise is one the statute permits.
A spouse's written waiverFla. Stat. § 732.702
A spouse may waive homestead rights, before or after the marriage, in a written agreement signed with the formalities the statute sets; a waiver signed after the marriage requires fair disclosure of the other spouse's estate. With a valid waiver the devise restriction that protects the waiving spouse does not apply.
When no spouse and no minor child survivesFla. Stat. § 732.4015
The devise restrictions do not apply. The homestead may be devised freely by will or trust, and if there is no will it passes by intestate succession like other property.
A home held by spouses with survivorshipFla. Stat. § 689.15
Property spouses hold as tenants by the entireties, or jointly with an express right of survivorship, vests in the surviving spouse at the first death by operation of law; a will or trust does not control it. At the second death the survivor's homestead passes under the rules above.
A home held jointly with someone other than a spouseFla. Stat. § 689.15
Florida presumes a tenancy in common. A joint tenancy passes to the surviving co-owner only when the instrument creating it expressly provides for survivorship. A married owner's conveyance of a homestead requires the joinder of the spouse.
A homestead titled to a revocable trustFla. Stat. § 736.1109Fla. Stat. § 732.4015Fla. Stat. § 732.4017
A homestead transferred to a revocable trust keeps its protected character in the hands of the trust's beneficiaries, and the constitutional devise restrictions apply to the trust's disposition of it when a spouse or minor child survives. An owner's lifetime transfer of a homestead is governed by its own statute.
An enhanced life estate ("Lady Bird") deed
An enhanced life estate deed is a lifetime conveyance that reserves to the owner a life estate with the power to sell, mortgage, or convey without the remainder beneficiaries' consent; the remainder vests at the owner's death outside probate. The form rests on Florida title practice rather than a single statute, and a married owner's spouse must join a conveyance of the homestead.
The homestead property-tax exemption
The exemption and the assessment cap that comes with it are applied for with the county property appraiser by the annual filing deadline. They attach to the owner's own application and do not pass to heirs automatically; a new owner applies anew.
Creditors
The constitution exempts a homestead from forced sale by creditors, with exceptions for taxes and assessments, obligations contracted for its purchase, improvement, or repair, and labor performed on it. The exemption inures to the surviving spouse or heirs.
The Florida Constitution and the property-tax chapters are outside the verbatim statute library; read them at the official source.
How these rules apply to your situation is a question for a licensed Florida attorney of your choosing. LegalDraft states the rules; it does not answer that question.
After a death: the inherited Florida home
How title by deed, the survivors, and the probate court's determination operate — stated generally.
Whether the home was the decedent's protected homesteadFla. Stat. § 222.17Fla. Prob. R. 5.405
Protected-homestead status turns on the decedent's permanent residence in Florida and on who survives. The recorded deed and the county property appraiser's records show how the home was titled and whether the exemption was on file; the probate court determines protected-homestead status when asked.
How the deed reads decides the first questionFla. Stat. § 689.15Fla. Stat. § 736.1109Fla. Stat. § 732.401
A home held by spouses as tenants by the entireties, or jointly with an express right of survivorship, vests in the survivor at death by operation of law and is not a probate asset. A home titled to a revocable trust passes under the trust's terms and keeps its protected character. A home in the decedent's sole name, or a tenancy-in-common share, passes through the estate, by devise or by descent.
When a spouse or minor child survives the decedentFla. Stat. § 732.4015Fla. Stat. § 732.401
A devise of the homestead is permitted only to a surviving spouse, and not at all when a minor child survives. A devise the constitution does not permit is ineffective, and the homestead descends by law: a life estate to the surviving spouse with the remainder to the descendants, or, by the spouse's written election filed within the time the statute sets after the death, an undivided one-half interest as a tenant in common.
The protected-homestead determinationFla. Prob. R. 5.405Fla. Stat. § 733.608Fla. Prob. R. 5.404
An interested person may petition the probate court to determine that real property was the decedent's protected homestead; the order is what heirs, buyers, and title insurers rely on. A personal representative's general powers do not extend to protected homestead, and one who takes possession of it must give the notice the rules require.
The rest of the estateFla. Stat. § 735.301Fla. Stat. § 735.201Fla. Stat. § 734.102
Florida provides more than one administration path: disposition without administration for an estate consisting of exempt property and non-exempt personal property within the limits the statute sets, summary administration for an estate within the statutory value ceiling or where the decedent has been dead more than two years, formal administration otherwise, and ancillary administration for a non-resident decedent's Florida property. Protected homestead is not counted toward the value ceilings.
A mortgage on the home
A death does not discharge a mortgage. Federal mortgage-servicing rules address a successor in interest's communication with, and assumption of, the loan; missed payments during an administration can lead to foreclosure regardless of homestead protection.
The public record
A survivorship vesting is shown in the public record by recording a certified death certificate in the county where the property sits; a devise or descent through the estate is shown by the probate court's orders. Transfers made before the takers are established can cloud the title.
The Florida Constitution and the property-tax chapters are outside the verbatim statute library; read them at the official source.
How these rules apply to your situation is a question for a licensed Florida attorney of your choosing. LegalDraft states the rules; it does not answer that question.
LegalDraft is self-help legal document software. LegalDraft is not a law firm, does not provide legal advice, and does not decide what legal action you should take. Your documents are prepared from your own answers on templates; the software chooses no term for you, and no attorney has reviewed your document unless you engage one. Communications with LegalDraft are not protected by attorney-client privilege. For legal advice, consult an independent licensed attorney.