The Unique Nature of Florida Homestead
When a Florida homeowner passes away, their homestead receives special treatment unlike any other asset. Because the homestead is protected under Article X, Section 4 of the Florida Constitution and Fla. Stat. § 732.401, it generally passes directly to heirs — not through the normal probate process.
But exactly how it transfers depends on who survives the decedent and how the property was titled. Understanding these rules is critical to ensuring the family home stays protected and properly inherited.
Step 1: Determining If the Property Qualifies as Homestead
First, the court must confirm that the property meets Florida’s homestead criteria:
- The decedent was a Florida resident;
- The property was their primary residence at death; and
- It met the acreage limits (½ acre within a city or 160 acres outside).
Once confirmed, the property receives constitutional protection from most creditors and becomes subject to Florida’s descent and devise restrictions.
Step 2: Understanding Descent and Devise Rules
Florida law strictly limits who can inherit a homestead and how it can be devised by will.
Under Fla. Const. art. X, § 4(c) and Fla. Stat. § 732.401:
- If there is a surviving spouse and minor child:
The property cannot be devised by will. The spouse receives a life estate, and the minor child (or children) receive the remainder interest. - If there is a surviving spouse but no minor children:
The spouse may receive either:- A life estate, with remainder to the decedent’s descendants, or
- An elective 50% interest in the property as a tenant in common (Fla. Stat. § 732.401(2)).
- If there is no surviving spouse or minor child:
The homestead may be freely devised to anyone named in the will. If no will exists, it passes under Florida’s intestate succession laws (Fla. Stat. § 732.103).
These restrictions are constitutional — meaning even a will or trust cannot override them.
Step 3: Filing a Petition to Determine Homestead Status
To secure these protections, the personal representative (or an heir) files a Petition to Determine Homestead Status in the probate court.
Once the court enters an Order Determining Homestead, the property:
- Passes to the heirs outside of probate;
- Is shielded from most creditors of the decedent’s estate; and
- Can be sold, transferred, or refinanced by the new owners.
Clause Law Group prepares and files these petitions routinely in Martin, St. Lucie, and Palm Beach Counties, ensuring a smooth and legally sound transfer.
Step 4: What Happens to the Mortgage or Liens?
Homestead property is protected from unsecured creditors but not from valid liens, such as:
- Mortgages;
- Property taxes;
- Mechanics’ or contractors’ liens for home improvements.
Heirs who inherit the home take it subject to any outstanding mortgage or lien. The personal representative may continue making payments during administration to prevent foreclosure or tax sale.
Step 5: Selling the Homestead After Death
Once the court confirms homestead status, the property can usually be sold by the heirs — but the proceeds lose homestead protection once converted to cash.
If the surviving spouse holds a life estate, all interested parties must agree to the sale, or the spouse may elect to convert their life estate into a 50% ownership share to simplify matters.
Our firm often prepares joint stipulations and partition agreements that allow families to sell the home while protecting everyone’s legal interests.
Step 6: Out-of-State Heirs and Florida Property
If the deceased owner lived elsewhere but owned Florida real estate as a homestead, the property still receives Florida constitutional protection.
Out-of-state heirs must open an ancillary probate under Fla. Stat. § 734.102 to formally transfer title. Clause Law Group frequently handles these matters remotely — no travel to Florida required.
Final Thoughts
Florida’s homestead law provides powerful protection, but it also imposes strict inheritance rules that can surprise families. Whether the home goes to a spouse, children, or other heirs depends entirely on who survives and how the property was titled.
At Clause Law Group, we ensure families understand these rules, preserve the home’s protection, and complete the transfer efficiently and correctly.
We proudly assist clients throughout Stuart, Martin County, St. Lucie County, and Palm Beach County, as well as heirs across the country who inherit Florida property.
