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Florida homestead law can produce results that surprise families after a homeowner dies. A Will may say one thing, a deed may suggest another, and family members may assume that a surviving spouse automatically becomes the sole owner of the home. Florida law, however, gives homestead property special constitutional and statutory treatment.
When a Florida homeowner dies leaving a surviving spouse, descendants, or both, the first questions should include whether the property was the decedent’s protected homestead, how title was held, whether the homestead was validly devised, and whether a surviving spouse has an election that must be exercised within a statutory deadline.
KEY TAKEAWAY
A Florida Will does not necessarily control homestead the same way it controls ordinary probate property. If homestead is not devised as Florida law and the Constitution permit, and the decedent leaves a spouse and descendants, the surviving spouse generally receives a life estate and the descendants receive the vested remainder. The spouse may instead elect an undivided one-half interest as a tenant in common-but the election generally must be made within six months after death and during the spouse’s lifetime.
Why Florida Homestead Is Different
Florida’s homestead protections are not merely tax rules. Homestead can affect creditor protection, restrictions on devise, and the ownership interests that arise at death. Chapter 732 of the 2026 Florida Statutes contains specific rules governing descent and devise of protected homestead.
That is why an estate plan should not analyze the Last Will & Testament in isolation. The deed, marital status, descendants, constitutional homestead status, Trusts, and other ownership arrangements can all matter.
When a Homestead Cannot Be Freely Devised
Florida Statute § 732.4015 reflects the constitutional restriction on devise. If the owner is survived by a spouse or minor child, the homestead is not freely devisable, except that the homestead may be devised to the owner’s spouse when there is no minor child.
The statute also recognizes that a disposition through certain Trusts can constitute a “devise” for homestead purposes. Moving a residence into a Trust therefore does not automatically eliminate Florida’s homestead restrictions.
What Happens When the Decedent Leaves a Spouse and Descendants?
Under § 732.401, when protected homestead is not devised as authorized by law and the Constitution, and the decedent is survived by a spouse and one or more descendants, the surviving spouse takes a life estate in the homestead. The decedent’s descendants in being at death receive the vested remainder per stirpes.
A life estate and a remainder interest divide ownership over time. The surviving spouse has the present life estate interest, while the descendants hold the future remainder. That structure can create practical questions involving possession, repairs, insurance, taxes, improvements, sale, and allocation of expenses.
The Surviving Spouse Has an Important Alternative
Florida law gives the surviving spouse an alternative to the statutory life estate. Instead of taking the life estate, the spouse may elect an undivided one-half interest in the homestead as a tenant in common. The remaining undivided one-half interest then vests in the decedent’s descendants in being at death, per stirpes.
This can materially change the family’s ownership structure. A life tenant and remaindermen have different rights and economic interests from co-owners holding undivided tenant-in-common interests.
The Six-Month Deadline Is Critical
The homestead election is time-sensitive. Section 732.401 provides that the election generally must be made within six months after the decedent’s death and during the surviving spouse’s lifetime. Once made, the election is irrevocable.
The statute requires the election to be made by recording a notice of election containing the legal description of the homestead in the official records of the county or counties where the property is located. Special rules apply when an attorney in fact or guardian seeks court approval to make the election for the surviving spouse.
Families should therefore obtain advice promptly after death rather than waiting until the probate estate is close to completion.
How Are Property Expenses Handled?
Until a one-half tenant-in-common election is made, § 732.401 directs that expenses relating to ownership of the homestead be allocated between the surviving spouse as life tenant and the descendants as remaindermen under Chapter 738. If the spouse makes the election, ownership expenses are allocated between the spouse and descendants as tenants in common in proportion to their shares, effective as of the filing of the election.
This is one reason families should avoid informal assumptions about who “owns the house” or who must pay every expense after death.
Title Can Change the Analysis
Section 732.401 expressly does not apply to property the decedent owned in tenancy by the entireties or in joint tenancy with rights of survivorship. Those forms of ownership can carry survivorship consequences independent of the descent rule discussed above.
The exact deed should therefore be reviewed before anyone concludes that the residence must pass through the homestead descent framework.
Homestead and the Elective Share Are Separate Concepts
Florida also protects a surviving spouse through the elective-share statutes. Under § 732.2065, the elective share is 30 percent of the elective estate. The elective estate can include more than the traditional probate estate; § 732.2035 identifies categories that can enter into the elective-estate calculation, including the decedent’s interest in protected homestead.
At the same time, § 732.2105 provides that the elective share is in addition to homestead, exempt property, and statutory allowances. These provisions are technical and should not be reduced to the assumption that a spouse simply receives “30 percent of probate.”
Elective-Share Deadlines Also Matter
The elective share has its own deadline structure. Section 732.2135 generally requires the election to be filed by the earlier of six months after service of the notice of administration on the surviving spouse (or the specified representative) or two years after the decedent’s death, subject to the statute’s provisions concerning extensions and related proceedings.
This deadline is distinct from the six-month homestead election under § 732.401. A surviving spouse may therefore have multiple rights requiring separate analysis and separate action.
What If There Is No Valid Homestead Devise?
If homestead is not devised as authorized, the statutory descent rules apply. The consequences depend on who survives the decedent and how title was held. Where a spouse and descendants survive, the life estate/remainder structure and the spouse’s one-half election become central.
Where the family structure is different, the result can be different. This is why a deed, Will, Trust, marital history, and family tree should be reviewed together.
Adult Children Should Not Assume They Can Force Immediate Control
When descendants receive vested remainder interests subject to a surviving spouse’s life estate, their ownership interest is real, but it is not the same as the spouse’s present possessory life estate interest. Conversely, a surviving spouse should not assume that a life estate is equivalent to sole fee-simple ownership.
When the spouse elects a one-half tenant-in-common interest, the legal relationship changes again. Families considering sale, refinancing, major repairs, or settlement should identify the actual interests before signing documents or making commitments.
Estate Planning Before Death Can Prevent Confusion
Homestead planning is especially important in second marriages, blended families, families with minor children, and situations where the homeowner wants a spouse to remain in the residence while ultimately preserving an interest for descendants.
A Will, Trust, deed, beneficiary plan, marital agreement, and Power of Attorney should be coordinated rather than drafted as unrelated documents. A plan that appears straightforward for ordinary assets may operate very differently when the asset is Florida protected homestead.
Practical Checklist After a Florida Homeowner Dies
Before deciding who owns the residence or how it should be handled, obtain and review the current deed; determine whether the property qualified as the decedent’s homestead; identify the surviving spouse and descendants, including whether any child is a minor; review the Will and any relevant Trust; determine whether the property was held with survivorship rights; calendar the surviving spouse’s six-month homestead election deadline when applicable; evaluate any elective-share rights and deadlines separately; and avoid selling, transferring, or encumbering the property until the ownership interests are understood.
The Bottom Line
Florida homestead is one of the areas where a seemingly simple estate can become legally complicated very quickly. The home may be subject to constitutional restrictions on devise, statutory descent rules, a surviving spouse’s election, and separate elective-share rights.
For surviving spouses and adult children, early analysis can prevent missed deadlines and misunderstandings about ownership. For homeowners planning ahead, coordinating the deed and estate-planning documents can reduce the risk of an unintended result.
At Caserta & Spiriti, PLLC, we assist Florida families with elder law, probate, estate planning, deeds, homestead issues, and related real estate matters.