Ginsberg Shulman, PL — Board Certified Estate & Elder Law AttorneysGinsberg Shulman, PL — Board Certified Estate & Elder Law Attorneys

Florida Homestead in Probate: Why the House Has Its Own Rules

In Florida probate, the decedent’s home is governed by its own set of constitutional rules. Protected homestead passes outside the normal estate: it descends directly to the heirs at death, it is generally shielded from the decedent’s creditors, and, if the decedent left a spouse or minor child, the law overrides the will and dictates who gets it. Nearly every probate involving a house needs a court order determining homestead status, and many of the most expensive probate mistakes involve the house.

What Makes a Home “Homestead” in Probate?

Article X, §4 of the Florida Constitution protects the residence a Florida decedent owned and occupied as their primary home (up to half an acre inside a municipality, 160 acres outside). In probate, that status has three separate consequences, and people constantly conflate them:

  1. Creditor protection. Protected homestead is exempt from forced sale for the decedent’s general creditors, and the protection carries through to the heirs who inherit it. Credit card companies and medical creditors cannot reach it. Mortgages, property tax, and mechanics’ liens on the property itself still apply.
  2. Restrictions on devise. If the owner is survived by a spouse or a minor child, the homestead cannot be devised at all, except to the spouse, and only if there is no minor child (§732.4015, Fla. Stat.). A will that violates this is simply ineffective as to the house.
  3. Forced descent. When the devise restriction applies (or the will fails to dispose of the homestead), §732.401, Fla. Stat. dictates the result: the surviving spouse takes a life estate, with a vested remainder to the decedent’s descendants per stirpes.

The Spouse’s 50% Election and Its Six-Month Deadline

Instead of the life estate, the surviving spouse may elect to take an undivided one-half interest as tenant in common, with the other half vesting in the descendants (§732.401(2), Fla. Stat.). The election must be recorded within six months of death and during the spouse’s lifetime, and once made it’s irrevocable.

This election is one of the most frequently missed deadlines in Florida probate. A life estate ties the spouse and the children together for the spouse’s lifetime: the spouse carries the taxes, insurance, and repairs, and can’t sell without the remaindermen. The 50% election converts that into a clean co-ownership that can be partitioned or sold. For a second-marriage family where the spouse and the decedent’s children will not co-exist happily on one deed, the six-month election is frequently the most important decision in the case, and it expires whether or not anyone opened a probate.

Why You Need a Homestead Order Even When Everyone Agrees

Homestead status is not self-executing on paper; title companies want a court order. The petition to determine homestead status asks the court to adjudicate that the property was protected homestead and identify who took it at death. Without that order, the family usually can’t sell with title insurance, because the title company can’t tell whether the property is exposed to estate creditors or who actually owns it.

The order matters even in friendly, solvent estates. It’s the document that cleanly severs the house from the claims process and puts marketable title in the heirs’ names.

Common Homestead Traps in Probate

  • The will leaves the house to a trust, and there’s a surviving spouse. Ineffective devise; §732.401 descent applies instead. This surfaces in second marriages constantly.
  • Selling before the homestead order. Contracts signed before status is determined close late or fall apart.
  • Missing the six-month election. The spouse is locked into the life estate.
  • Assuming homestead counts toward summary administration’s $150,000 cap. It does not; homestead is exempt, which is why homestead-plus-small-accounts estates often qualify for summary administration.
  • Renting out the “homestead” before death. Homestead status can be abandoned, and the facts of occupancy matter.

Common Questions

Is the homestead part of the probate estate? Technically, protected homestead is not an asset of the estate subject to administration; it descends directly. But the probate court still determines its status, which is why it runs through the probate file.

Can creditors ever reach the homestead? Liens on the property itself (the mortgage, property taxes, construction liens) still apply. General creditors of the decedent cannot reach it when the homestead passes to the spouse or heirs protected by the Constitution. If the will directs the house be sold and there is no protected heir, the protection can be lost.

What if the house was in a revocable trust? Homestead protections and restrictions still apply; trust ownership doesn’t erase the constitutional rules. The analysis just runs through the trust instrument.

Reviewed by David A. Shulman, Florida Bar Board Certified in Wills, Trusts & Estates. Last updated July 2026.

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