Your will doesn’t control your house. Not in Florida, not if you have a spouse or a minor child.
There are three different things in Florida called “homestead” and almost everyone confuses them: the property tax exemption, creditor protection, and the devise and descent restriction. This post is only about the third one. It’s in Article X, Section 4(c) of the Florida Constitution, and it’s where estate plans blow up.
The rule only matters if the house is titled in the decedent’s individual name. If it’s owned husband-and-wife as tenants by the entireties, the survivor takes by operation of law and none of this applies. But if the homestead is in one spouse’s individual name, and that spouse dies with a surviving spouse or a minor child, the Constitution takes the pen out of their hand.
The Rule
Married, no descendants: the spouse gets it outright. Done.
Married, with adult descendants only: the owner can still leave it to the spouse outright. Adult kids don’t trigger the restriction. But if the owner tries to leave it to the adult kids and cut out the spouse, Florida Statute § 732.401 kicks in. The spouse gets a life estate. The descendants get the remainder.
Married, with even one minor child: the homestead can’t be devised at all. Not to the spouse, not to anybody. Strict constitutional prohibition. The house passes the same way under § 732.401 — spouse gets a life estate, lineal descendants share the remainder.
And it doesn’t matter whose minor child it is. One minor child from a prior marriage is enough. That one minor triggers the rule, and then every descendant — including the four adult kids from the first marriage — shares the remainder. If that sounds like a planning nightmare, it is.
Why the Life Estate Is a Mess
A life estate sounds like the spouse gets to stay in the house, which they do. The problem is everything else.
The life tenant pays the taxes, the insurance, and the maintenance. The remaindermen pay nothing. The life tenant can’t sell. Can’t refinance. Can’t pull equity out. If the spouse needs to move into assisted living, the house can’t be sold without every remainderman signing off, and those remaindermen are often adult stepchildren from a prior marriage who have no reason to cooperate.
The statute gives the spouse a way out. Under § 732.401(2), the spouse can elect to take an undivided one-half interest as tenant in common with the descendants instead of a life estate. That’s usually the better option — at least then the spouse owns half and can force a partition sale. But the election has to be made within six months of the date of death, and it has to be recorded.
I have been called by surviving spouses two years after death asking why they can’t sell the house. At that point the election is gone. There is nothing to do.
What the Will Says Doesn’t Matter
If there is a surviving minor child, the devise of the homestead is void. The Will can leave the house to the spouse outright in the cleanest possible language and it will not matter. The Constitution overrides the Will. I’ve seen wills that leave everything to the surviving spouse, and the house still passed under § 732.401 because one minor child was alive on the date of death.
A revocable trust doesn’t solve this either. People assume it does. It doesn’t. The same homestead analysis applies to a revocable trust as applies to a will because the transfer at death is still a devise. If the settlor has a minor child at death, the trust provision that directs the homestead is void to the same extent the will provision would be.
The Two Ways Out
There are only two mechanisms that get you out of this.
First, the spouse can waive homestead rights. A prenup or postnup that contains a proper homestead waiver works. So does the spouse signing the deed into a trust — that signature is treated as a waiver and you don’t need a separate agreement. The waiver only binds the spouse. A minor child can’t waive homestead rights and neither can anyone on the minor’s behalf.
Second — and this is the answer when there’s a minor child — a specific type of irrevocable trust funded during the owner’s lifetime. The owner deeds the homestead into the trust while alive, reserves a life estate to preserve the tax exemption and creditor protection, and the trust dictates what happens when the owner dies. Because the transfer into the trust was a lifetime conveyance and not a devise, the minor-child restriction doesn’t block it. Florida Statute § 732.4017 confirms the mechanism works.
This is not a casual document and it is not something to DIY. But for an owner with a minor child who needs to control where the homestead goes — a second marriage, a blended family, a special needs beneficiary — it’s the only tool that actually works.
The Takeaway
If you own a Florida homestead in your individual name and you have a surviving spouse or a minor child, you do not have the freedom to give your house away that you think you have. Your will doesn’t control it. Your revocable trust doesn’t control it. The Florida Constitution controls it, and the Constitution does not care what you wrote in your estate plan.