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The Florida Homestead After a Death

In Florida, the family home follows its own rules when the owner dies. "Homestead" carries three distinct protections — and the descent and devise rules can override what a will or even a revocable Trust says. A clear, simple overview for family members and named Trustees. General information, not legal advice.

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One word, three protections

Florida homestead means three different things: a constitutional shield from most creditors (Art. X, §4, Fla. Const.), restrictions on who may inherit the home when a spouse or minor child survives, and property-tax benefits like the homestead exemption and the Save Our Homes cap. Each follows its own rules — and after a death, all three can matter at once.

Who gets the home — §732.401

When homestead is not (or cannot be) validly devised, Florida Statute §732.401 decides:

  • Spouse and descendants both survive: the spouse takes a life estate in the homestead, with a vested remainder to the descendants per stirpes.
  • Instead of the life estate, the spouse may elect an undivided one-half interest as tenant in common. The statute is strict on timing: the election must be made within 6 months after the decedent's death and during the surviving spouse's lifetime.
  • A spouse but no descendants (or descendants but no spouse): the homestead descends like other intestate property — typically to the spouse outright, or to the descendants.

When the home can — and can't — be left by will: §732.4015

Florida restricts devising the homestead: it "shall not be subject to devise if the owner is survived by a spouse or a minor child or minor children, except that the homestead may be devised to the owner's spouse if there is no minor child or minor children." A devise that violates the rule fails, and the §732.401 descent rules above take over.

Named in a revocable Trust? The rules still apply

§732.4015(2) extends the restriction to Trusts: "owner" includes the grantor of a revocable Trust and "devise" includes a trust disposition of the home. So deeding the homestead into a revocable living Trust does not unlock the ability to leave it away from a surviving spouse or minor child — and a Trustee who distributes or sells the home without checking the descent rules can cloud the title. In a firm-supervised matter, TrusteeClear routes homestead questions to the attorney before anything moves.

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Creditors and the inherited homestead

The constitutional exemption generally inures to the surviving spouse or heirs — meaning most of the decedent's ordinary creditors cannot force a sale of the protected homestead after death. Obligations tied to the home itself, like a mortgage, property taxes, and construction or association liens, still apply. Whether a particular recipient and property qualify is fact-specific attorney territory.

Property taxes: exemption and the Save Our Homes cap

The decedent's homestead tax exemption and assessment cap do not simply continue. A surviving spouse or heir who lives in the home generally must qualify and file for the exemption in their own right — and moving or selling triggers its own rules. The county property appraiser's office and a Florida attorney can confirm what applies.

What should happen next?

Homestead outcomes turn on facts: who survived, how the deed reads, whether minors are involved, and the 6-month election clock. This page is general information, not legal advice. A free role check points you to the right next step, and a Florida attorney can confirm how the homestead passes in your situation.

Related reading

  • Dying without a will in Florida →
  • How to avoid probate in Florida →
  • Florida asset protection basics →

General information about Florida law, not legal advice.

Frequently asked questions

Can a Florida homestead be left by will?
Only in limited cases. Under §732.4015, the homestead cannot be devised if the owner is survived by a spouse or a minor child — except that it may be devised to the spouse when there is no minor child. An invalid devise falls back to the §732.401 descent rules. General information, not legal advice.
What does the surviving spouse get in a Florida homestead?
When the owner is also survived by descendants, the spouse generally takes a life estate with a vested remainder to the descendants — or may instead elect an undivided one-half interest as tenant in common. The statute requires that the election be made within 6 months after the decedent's death and during the spouse's lifetime (§732.401(2)).
Does putting the homestead in a revocable trust avoid these rules?
Generally no. §732.4015(2) defines "owner" to include the grantor of a revocable trust and "devise" to include trust dispositions, so the same restrictions apply to homestead held in a revocable living trust.
Can creditors take a Florida homestead after the owner dies?
Florida's constitutional exemption (Art. X, §4) generally inures to the surviving spouse or heirs, so ordinary creditors of the decedent usually cannot force its sale — though mortgages, property taxes, and liens on the home itself still apply. Fact-specific questions belong with a Florida attorney.

General information about Florida law, not legal advice.

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    • TrusteeClear. General information about Florida Trustee duties, not legal advice. Using these tools does not create an attorney-client relationship. AI organizes and drafts; TrusteeClear never files or sends anything on your behalf. Where attorney review happens, it is your firm's attorney or an independent attorney you engage directly. AI observations and chat are informational only — not legal advice, and not attorney-reviewed.