Look at the deed before you read the will. For a Florida homestead, the deed usually answers the question the will was trying to.
This illustrated video follows one family through the possibilities. It is a fictional family, and the narration is synthetic, but the rules are real. It starts with how the house is titled and works forward: a married owner with adult children, the same owner with a child under 18, a single owner, and a couple holding title together as tenants by the entirety. It closes with what happens when the heirs want to sell, and the documents a family should gather.
The reason the deed comes first is section 732.401(5) of the Florida Statutes. Homestead held by husband and wife as tenants by the entirety, or by anyone as joint tenants with right of survivorship, passes to the survivor by operation of law and never enters the estate. There is nothing for the constitutional restriction to attach to. Florida presumes that a deed to a married couple creates a tenancy by the entirety, so for most married homeowners the first death is simple and the second death is where the planning has to happen. I covered the other side of that coin, the deed that defeats the spouse and minor child, in an earlier post.
When the house is in one name, the constitution takes over. Your will does not control your house if you leave a spouse or a minor child. Article X, Section 4(c) allows a devise only to the spouse, and only when there is no minor child. Otherwise section 732.401 gives the spouse a life estate and the descendants the remainder, and the spouse has six months to record an election for a one-half interest instead.
The selling problem is the part families feel. A life tenant cannot convey the fee. Remaindermen cannot force the life tenant out. A sale takes every signature, and if one of the remaindermen is a minor, that signature generally comes from a guardian of the property with the court’s approval. Which is why the video spends its last minutes on documents: the recorded deed, the death certificate, the will or trust, and any prenuptial or postnuptial agreement, since a valid waiver under section 732.702 changes the answer entirely.
The video assumes no waiver and no unusual transfers during life, and it is general information, not advice about your property. The Florida homestead guide on this site covers the probate side in more detail.
