Your will may not control what happens to your Florida home.
If you have a surviving spouse or a minor child, Florida’s Constitution decides — not your documents. Most people don’t find this out until after someone dies, which is when fixing it becomes impossible.
Florida’s homestead law restricts how you can leave your primary residence when you die survived by a spouse or minor child. If you try to leave the home to someone other than your spouse — a child from a prior relationship, a sibling, a trust with different beneficiaries — that devise may be void. The Constitution overrides the will.
The Result Nobody Wanted
In a second marriage, the default result is a life estate. The surviving spouse gets the right to live in the home. The deceased spouse’s children from a prior relationship get a vested remainder interest. Neither party wanted that. The surviving spouse can’t sell or mortgage without the remainder beneficiaries’ consent. The children can’t force a sale while the spouse is alive. Everyone is stuck.
I’ve seen this come up in estates where the client had a perfectly drafted trust — revocable, funded correctly, proper deed, right beneficiaries. Didn’t matter. Because the trust’s beneficiaries didn’t match what the homestead law requires for a valid devise, the constitutional override applied anyway. The trust was correct. The result was still wrong.
The Minor Child Problem
If the homestead passes outright to a minor child — no trust in place, no guardian of the property designated in advance — the court will require a supervised guardianship of the property until the child turns eighteen. Annual accountings, court approval before spending the funds, restricted depository. All of it avoidable with a trust, but only if the trust exists before it becomes necessary.
At eighteen, whatever is left gets distributed outright. The court supervision ends and the assets walk out the door. No staggered distribution, no further control.
Creditor Protection and Bad Deeding
Florida homestead carries some of the strongest creditor protection in the country. A properly titled primary residence is generally exempt from most unsecured judgment creditors.
That protection doesn’t survive bad planning decisions. Moving the home into the wrong type of entity can eliminate it. Deeding the property to a revocable trust can preserve both the probate-avoidance benefit and the creditor protection, but the deed and the trust have to be structured correctly. A deed that doesn’t meet the requirements for homestead in trust doesn’t just fail to help — it may strip the protection you already had.
What the Plan Has to Do
If you have a spouse and children from a prior relationship, the homestead issue has to be addressed directly before death — not worked around after. Florida law allows a surviving spouse and the heirs of the deceased spouse to agree on a different arrangement, and there are planning structures that produce a different result if they’re in place in time. A life estate with right of sale, structured correctly, can give the surviving spouse meaningful rights without permanently locking out the remainder beneficiaries. None of those options exist once the estate is open and the default rules have applied.
During probate, the personal representative has to file a Petition to Determine Homestead Status — a separate proceeding that establishes the property’s classification and controls whether creditors can reach it. If that determination is wrong, it clouds title and can block the sale of the property for years. I’ve seen closings fall apart over it.
A will that says “I leave my home to my trust” is not enough. The question is whether that trust — and that deed — are structured to work within Florida’s homestead rules. Usually, that question hasn’t been asked.