Florida homestead after death | A Florida Probate

When a Florida resident dies owning the home they lived in, Florida’s constitution can control three things the will may not: who receives the home, whether the owner’s creditors can reach it, and whether the personal representative controls it (Art. X, § 4, Fla. Const.).

If the owner is survived by a spouse or a minor child, the home generally cannot be left to anyone else. If it can be left freely, it still usually passes outside the personal representative’s control and free of most of the owner’s debts. The probate court is usually asked to determine its homestead status so that title is clear (Fla. Prob. R. 5.405).

This page is about what happens after a death. For planning a home into a trust during life, see homestead trust planning.

Is the home “protected homestead”?

The Probate Code uses the term protected homestead for a home that carries the constitutional homestead protections at the owner’s death, so that they pass to the surviving spouse or heirs (§ 731.201). Generally that requires:

the owner was a natural person domiciled in Florida, and the home was the residence of the owner or the owner’s family;
the property is within the size limits: one-half acre inside a city or town, or 160 contiguous acres outside one (Art. X, § 4(a)).

Property the owner held as tenants by the entireties or in joint tenancy with survivorship is not protected homestead; it already belongs to the surviving owner (§ 731.201).

Who receives the home

Who survives the owner	What happens
A spouse and a minor child	The home cannot be left by will or revocable trust. It passes by statute (§ 732.4015, § 732.401).
A spouse, no minor child	It may be left only to the spouse. Any other gift of it fails and it passes by statute.
No spouse and no minor child	It may be left by will to anyone, and passes outside the personal representative’s control.

When the home passes by statute and there is a spouse and descendants, the spouse receives a life estate with the remainder to the descendants, or may elect, within six months after the death, to take an undivided one-half interest as a tenant in common instead (§ 732.401). The same restrictions apply to a home held in the owner’s revocable trust (§ 732.4015). A spouse can waive homestead rights in a valid written agreement (§ 732.702); a minor child’s protection cannot be waived by anyone. Certain lifetime transfers that the owner could not revoke are not treated as gifts at death (§ 732.4017).

Creditors

The constitutional protection from forced sale “inures” to the surviving spouse or heirs (Art. X, § 4(b)). In practice, protected homestead is generally not available to pay the owner’s ordinary debts, such as credit cards or medical bills. It remains subject to:

mortgages and other debts for its purchase, improvement, or repair;
property taxes and assessments.

The personal representative’s limited role

Protected homestead is not an estate asset under the personal representative’s control (§ 733.607, § 733.608). If no one with an interest is living there, the personal representative may take possession only to preserve, insure, and protect it pending a decision on its status, and is entitled to a lien for those expenses (§ 733.608).

The court’s determination of homestead status

Any interested person may petition the probate court to determine whether real property is protected homestead. The petition states the date of death, the decedent’s domicile, whether there is a will, the surviving spouse and any waiver, the descendants and whether any were minors, how title was held, and the facts supporting homestead status, and it is served by formal notice (Fla. Prob. R. 5.405). The resulting order identifies who owns the home, which is what a buyer or lender later relies on.

Property taxes after the death

The homestead exemption depends on who owns and lives in the home on January 1 (§ 196.031). A new owner who makes it their permanent residence must apply for their own exemption. The home is generally reassessed at just value on January 1 after a change of ownership, but not when it passes to the surviving spouse, passes by statute to the spouse or minor children under § 732.401, or passes to a permanent resident who was legally or naturally dependent on the owner (§ 193.155(3)(a)2–4).

An example

A widower dies in Winter Park, survived by two adult children and no minor children, with a will leaving his homestead to his daughter and his investments to both children equally. Because no spouse or minor child survives, the gift of the home to his daughter is valid. His estate has credit card debt larger than the investments. The court determines that the home is protected homestead passing to the daughter, so the card issuers cannot reach it, and the debts are paid from the investments before her brother receives what remains. The home is reassessed the following January 1 because she is not a surviving spouse, minor child, or dependent.

Common mistakes

Assuming the will controls the home when a spouse or minor child survives
Listing the home as an estate asset and selling it as personal representative
Missing the spouse’s six-month election
Forgetting that the mortgage and taxes survive the homestead protection
Confusing the property-tax exemption with the constitutional protections at death

What to gather

The recorded deed and how title was held
The will or trust and any marital agreement
Names and dates of birth of the spouse and all children
Evidence the home was the residence: homestead exemption records, voter and driver’s license address
Mortgage, tax, and insurance information

Next step

Before anyone signs a listing agreement or moves belongings, confirm whether the owner was survived by a spouse or minor child and how title was held. Those facts decide who owns the home and who must sign.

Related guidance

Sources: Art. X, § 4, Fla. Const.; Florida Statutes § 193.155, § 196.031, § 731.201, § 732.401, § 732.4015, § 732.4017, § 732.702, § 733.607, and § 733.608 (2026); Florida Probate Rule 5.405 (October 15, 2026 edition). Checked on October 23, 2026.