Florida Homestead After Death
Florida homestead protection does not end when the owner dies. The homestead passes to the surviving spouse or heirs free of the decedent’s creditors, regardless of how much the owner owed at death. But the Florida Constitution also restricts who can receive the homestead, and those restrictions override whatever a will or trust says.
The intersection of creditor protection, devise restrictions, and probate requirements catches most families off guard. A home held in a revocable living trust still cannot bypass the constitutional rules, and selling the property after death often requires a court order that families assumed their trust planning had avoided.
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Does Homestead Creditor Protection Continue After Death?
A judgment creditor who could not force the sale of a homestead during the owner’s lifetime gains no additional rights when the owner dies. Article X, Section 4(b) of the Florida Constitution provides that the homestead exemptions inure to the surviving spouse or heirs. A recorded judgment does not attach to the homestead either before or after death, and the property cannot be sold to pay the decedent’s unsecured creditors.
The Florida Supreme Court established this principle in Public Health Trust of Dade County v. Lopez, holding that the creditor exemption continues after death without regard to whether the heirs were financially dependent on the homestead owner. Even if the decedent owed millions in unsecured judgments, the homestead passes to the heirs free of those claims. The protection applies automatically and does not require any filing or court action.
One exception exists: if the owner’s will directs that the homestead be sold and the proceeds divided among beneficiaries, the property loses its protected status at death. The Florida Supreme Court addressed this in McKean v. Warburton, holding that a sale-and-divide direction strips the homestead protection that would otherwise pass to the heirs.
Who Can Inherit Homestead Property?
The Florida Constitution limits who can receive homestead property at death, and these restrictions override whatever the owner’s will or trust says.
If the owner is survived by a spouse and no minor children, the homestead may be devised only to the surviving spouse. The owner cannot leave it to adult children, a trust for the children’s benefit, or anyone else. A devise to anyone other than the surviving spouse is constitutionally invalid, and the property instead descends as if the owner had no will.
If the owner is survived by minor children—whether or not there is also a surviving spouse—the homestead cannot be devised at all. It descends by operation of law regardless of what the will says.
If the owner has neither a surviving spouse nor minor children, the homestead can be freely devised to anyone. This is the only scenario where the owner has complete testamentary freedom over the homestead.
These restrictions apply even when the homestead is held in a revocable living trust. A trust avoids probate, but it cannot override the Florida Constitution. Courts have invalidated trust provisions that attempted to distribute homestead property in ways that violate the constitutional devise restrictions.
Tenancy by the Entirety Exception
When spouses own the homestead as tenants by the entirety, the devise restrictions do not apply. The surviving spouse takes full ownership automatically by operation of law when the other spouse dies. The property passes outside of probate entirely, and the will has no effect on it. This is a common ownership structure for married couples in Florida, and it sidesteps the complications that arise under the constitutional rules.
What Happens Without a Will?
When a homestead owner dies without a will, the property descends according to Florida’s intestacy statutes. The outcome depends on the family structure at death.
If the decedent is survived by a spouse but no descendants, the surviving spouse inherits the homestead outright.
Florida Statute Section 732.401 governs homestead descent. If the decedent is survived by a spouse and one or more descendants—whether minor or adult—the surviving spouse receives a life estate, with a vested remainder passing to the decedent’s descendants per stirpes. The surviving spouse may elect to take an undivided one-half interest as a tenant in common instead of the life estate. This election must be filed in the official records of the county where the property is located within six months of the owner’s death. The election is irrevocable once recorded.
The choice between a life estate and a one-half tenancy in common has real consequences. A life estate lets the surviving spouse live in the home for life but gives no ability to force a sale unless all remainder holders consent. The one-half tenancy in common gives the spouse an ownership interest that can be partitioned. The spouse can petition a court to force a sale and collect half the proceeds. For a surviving spouse who needs to access the home’s equity, the tenancy in common election is often the better choice.
If there is no surviving spouse, the homestead descends to the decedent’s lineal descendants per stirpes. Kelley’s Homestead Paradigm maps every family configuration to its corresponding inheritance outcome under Section 732.401.
Can Step-Children Inherit Homestead?
The Florida Supreme Court in Snyder v. Davis held that the word “heirs” in the homestead provision is not limited to those who would take under intestacy. Anyone within the class of persons listed in Florida Statute Section 732.103 qualifies as an heir for homestead purposes. This includes step-children in certain circumstances, and the Fifth District Court of Appeal in Traeger v. Credit First National confirmed that step-children who would inherit under the intestacy statutes qualify for homestead protections.
Does Moving to a Care Facility Affect Homestead Status?
A homeowner who moves to a nursing home or assisted living facility before death does not automatically lose homestead protection. Florida courts have consistently held that temporary absence for medical reasons does not constitute abandonment, so long as the owner did not form the intent to permanently leave.
Courts presume that people who enter care facilities intend to return home. A homeowner who spends months or even years in a nursing home before dying generally retains homestead protection through death. The property passes to the heirs free of creditor claims, just as if the owner had still been living there when they died.
The test is intent, not physical presence. If a family member questions whether a parent’s move to a facility jeopardized the homestead, the relevant inquiry is whether the parent intended to abandon the property as a permanent residence. Evidence of continued homestead tax exemption filing, maintenance of the property, and the absence of any other claimed residence all support continued homestead status.
Selling Homestead Property After Death
Families often assume that selling a deceased parent’s homestead is straightforward, especially when the parent used a living trust to avoid probate. In practice, it is more complicated.
Title insurance companies will not insure a sale of a decedent’s homestead unless the title examiner is confident that the property legally qualified as exempt homestead at the time of death. Public records show ownership, but they do not establish that the decedent was actually living there when they died. The owner may have moved, rented the property, or entered a care facility. A homestead tax exemption filing on record is not conclusive proof of residency at death.
When the decedent had creditors, title companies typically require a court order confirming the property’s homestead status before they will insure the sale. Obtaining that order requires opening a probate proceeding—even if the property was held in a living trust and there are no other probate assets. The proceeding’s sole purpose is to petition for an Order Determining Homestead Status, which the court routinely grants. This order confirms that the property is exempt from creditor claims and allows the title company to insure the transfer.
One practical workaround: if the homestead is the only asset in the estate and the non-homestead assets total less than $75,000, the estate qualifies for summary administration rather than full formal probate. Summary administration does not require appointing a personal representative and typically resolves within a few months.
Probate is generally not required when a surviving joint owner exists. Joint tenancy with right of survivorship and tenancy by the entirety both pass ownership automatically at death. Similarly, if the decedent held only a life estate and the heirs already own the remainder interest, no probate is needed.
Property Tax Impact on Heirs
Florida’s Save Our Homes amendment caps annual increases in a homestead property’s assessed value at 3% or the rate of inflation, whichever is lower. For a home owned for decades, the assessed value can be far below market value, keeping property taxes low.
When the homestead passes to someone other than a surviving spouse or qualifying dependent, the Save Our Homes cap resets. The county reassesses the property at full market value, and the new owner’s tax bill can double or triple compared to what the decedent was paying. An heir who inherits the family home and plans to keep it as a personal residence should apply for their own homestead exemption, but the new exemption starts from the reassessed market value—not the decedent’s capped amount.
A surviving spouse who continues to use the property as a primary residence can generally maintain the existing homestead exemption and Save Our Homes cap. The exemption transfers to the surviving spouse’s name without resetting the assessed value.
Homestead creditor protection is one part of the broader Florida homestead law system that also governs size limits, occupancy, and entity ownership. Spousal consent is required before a homestead owner can sell, mortgage, or transfer the property during their lifetime. When homestead property is held in a trust, the constitutional devise restrictions still apply, creating additional planning considerations that homestead and trust planning must account for.
Alper Law has structured offshore and domestic asset protection plans since 1991. Schedule a consultation or call (407) 444-0404.
