Most Florida lawyers tell clients you can’t disinherit a spouse or minor child from the homestead. That is true, except for the part where it isn’t. The Florida Constitution restricts how you devise the homestead at death. It does not restrict how you hold title during life. Title beats devise every time, and we see this go wrong a lot more often than people think.
The rule most clients have heard is that if you die owning a Florida homestead and you are survived by a spouse or minor child, you cannot devise that homestead away from them. The spouse and minor children are protected. That is the part of the rule that makes clients relax about the house. They figure Florida has it handled.
It doesn’t, if the title is wrong.
The Carve-Out Nobody Mentions
Florida Statute §732.4015 carves out property that the decedent held as tenants by the entirety or as joint tenants with right of survivorship. If the decedent’s title at the moment of death is TBE or joint tenancy, the homestead protection does not apply. The decedent’s interest evaporates at death and the surviving cotenant takes free and clear under the deed.
The constitutional protection only does its work when there is actually something in the estate to protect. By the time the family calls me, the deed is usually recorded and they are fighting about a house that is not part of the estate. The Florida courts have said this in pretty clean language over the years: the Constitution restricts what a homeowner can devise at death, but it does not restrict how a Florida homeowner can hold title during life. A homeowner can take title in a way that practically cuts down a spouse or a minor child, and the Constitution has nothing to say about it.
The Second Marriage Version
The most common fact pattern is the second marriage. Mom owns the house outright going into the marriage. New husband says we are a couple, we should put the house in both our names. Mom signs a survivorship deed. Then Mom dies first.
Mom’s kids from the first marriage walk in expecting Florida homestead law to put the house in play. It doesn’t. The house belongs to the new husband free and clear. Five years later the new husband dies, his kids from his first marriage take the house under his will, and Mom’s kids end up with nothing. The protection they thought they had was running on title that no longer existed at the moment Mom died.
The Adult Child Version
The other version is the adult child who says, “Mom, put me on the deed so I can help you.” A joint tenancy deed gets recorded. Mom dies. The other siblings come in assuming the house is in the will. The will does not reach the house. The kid whose name went on the deed owns it outright, and the other siblings have no homestead claim because at the moment of death there was no divisible interest left to attach to.
My partner Jill Ginsberg, who is board certified in elder law, sees the next layer of that one. The other siblings show up in her office asking who got Mom to sign that deed, whether Mom was competent, and whether anyone was even told. It turns into a fight about capacity, sometimes undue influence, sometimes both, and by the time it gets there, undoing the deed is a much harder lift than the planning would have been. Some of these matters end up needing a guardianship proceeding running parallel to the deed challenge.
The Spousal Joinder Break — and What It Doesn’t Cover
Here is the piece that does not get discussed enough. Article X of the Florida Constitution requires spousal joinder for any inter vivos transfer of the homestead. A married homeowner cannot unilaterally execute a joint tenancy deed putting someone else on title. The spouse has to join. That rule has teeth. It prevents a married homeowner from quietly retitling around a spouse’s homestead protection.
There is no equivalent rule requiring a minor child to join a deed. An unmarried Florida homeowner with minor children can unilaterally sign a joint tenancy deed putting the home in joint names with a new partner or an adult relative. That deed is valid. At death, the §732.4015 carve-out applies, the homestead protection evaporates, and the children’s constitutional inheritance protection has nothing left to attach to.
The entire homestead inheritance right of a minor child can be defeated by a single deed signed during the parent’s life. That version is the hardest to undo, because by the time anyone is paying attention, the parent is gone and you cannot go back and ask whether the parent really understood what was signed.
Practitioner Takeaway
When a client wants to control the homestead at death, the first document I look at is the deed. Not the will. If the title is already joint tenancy or TBE with the wrong person, the rest of the estate plan has nothing to say about the house. While the homeowner is alive, a corrective deed is still possible. Once the homeowner dies owning the property in joint tenancy, it is done.
Look at the deed before you read the will.