Florida Homestead: Who Really Inherits Your Home?
Your home follows its own rulebook at death, and it can override your will. Here's how Florida homestead passes, and how to plan for it.
By: George Taylor
For most Florida families, the home is the largest thing they own, and it follows its own rulebook at death. Florida's homestead protections, meant to keep a family in its home, can also override your will and send the house to people you did not choose, on terms you did not pick.
Here is the quick answer: if you are survived by a spouse or a minor child, Florida law limits who you can leave your home to. If you do not, or cannot, leave it properly, your surviving spouse usually receives only a life estate, with your children owning the rest. This post is a companion to our post on dying without a will in Florida; here we focus on the home.
What Counts as "Homestead" Here?
Florida uses the word "homestead" for three different things: a property-tax break, protection from creditors, and a set of rules about how your home passes when you die. This post is about that last one. It applies to your primary Florida residence, and it can control your home regardless of what your will says.
Can I Leave my Home to Whomever I Want?
Not always. Under the Florida Constitution and Section 732.4015, your freedom to leave your homestead by will depends on your family. If you have no spouse and no minor child, you may leave your home to anyone. If you have a spouse but no minor child, you may leave it to that spouse, but not to someone else. And if you have a minor child, you cannot give the home away by will at all. When a will tries to leave the home in a way the law does not allow, that provision fails and the home passes under the homestead descent rules instead. In other words, the house can bypass your will even when the will itself is valid.
What Does My Spouse Actually Get?
If you are survived by a spouse and one or more descendants, and you did not validly leave the home to your spouse, your spouse receives a life estate: the right to live in the home for life, with your descendants owning what remains. This applies whether the children are minors or adults, and whether or not they are also your spouse's children.
As an alternative, the surviving spouse may elect to take an undivided one-half interest in the home as a co-owner, with the other half going to your descendants. That election has a strict deadline: it must be filed in the county records within six months of the death, and courts do not extend it. Either way, your spouse and your children end up tied together in the home, whether or not they get along.
How do People Plan Around This?
The right tool depends on the family, and a few are common:
- Title the home with your spouse as tenants by the entirety, or as joint tenants with right of survivorship. It then passes to the survivor automatically, and these descent rules do not apply.
- If you have no minor child, leave the home to your spouse outright in your will or trust.
- A valid prenuptial or postnuptial agreement can waive a spouse's homestead rights, allowing a different plan.
- Homestead can be held in a revocable trust, but the same restrictions apply if a spouse or minor child survives, so the trust must be drafted with that in mind.
One rule overrides the rest: a minor child. If you are survived by a minor child, you cannot direct where your home goes, so planning has to happen through how the home is titled and owned rather than through your will.
The homestead rules exist to protect families, but they are unforgiving of assumptions. Because the home is usually the largest asset, a mistake here can quietly undo an otherwise careful plan. The safest step is to confirm how your home is titled and how it will actually pass, rather than assume your will controls it.
Brinkley Morgan helps Florida families put estate and trust plans in place that stand up when they're needed most. Contact George Taylor to schedule a consultation.
Based on Florida Statutes §§ 732.401 and 732.4015 and Article X, Section 4 of the Florida Constitution. This article is general information, not legal advice.
Frequently Asked Questions
Can I Leave My Florida Home to My Children Instead of My Spouse?
Generally not while your spouse is alive, unless your spouse has waived their homestead rights. If you are survived by a spouse, you cannot leave the homestead to your children or anyone other than that spouse, and if you have a minor child you cannot give it away by will at all. Trying to do so simply sends the home through the homestead descent rules.
My Spouse and I Own the Home Together. Do These Rules Apply?
Usually not. If you hold the home as tenants by the entirety or as joint tenants with right of survivorship, it passes to the surviving spouse automatically and outside these descent rules.
What is the Six-Month Homestead Election?
A surviving spouse who would otherwise receive a life estate can instead choose to take a one-half ownership interest, as a co-owner with the decedent's descendants. The election must be filed in the county records within six months of the death, and courts treat that deadline as strict.
Can I Leave My Home to My Spouse Outright?
Yes, if you have no minor children. Florida law allows a homestead to be left to a surviving spouse when there is no minor child. If you have a minor child, even that is not permitted.
Does My Home Pass Under My Will?
Often it does not. If you are survived by a spouse or minor child and have not validly left the home to your spouse, the homestead passes under Florida's descent rules regardless of what your will says.
