Florida Homestead Devise and Descent Case Law

This page analyzes the most important Florida court decisions on the devise and descent of a homestead after the owner’s death.

The Devise Restriction

Where a Florida homeowner dies leaving a surviving spouse or a minor child, an attempted devise of the homestead is a nullity, and the property descends by law regardless of what the will says. Florida courts have read the constitutional restriction the same way since its earliest construction, and the Florida Supreme Court (Finch, 1981), the First District (Monks, 1992), and the Fourth District (Stirberg, 2023) have each applied it.

Section 732.4015(1) restates the constitutional rule: the homestead may not be devised if the owner is survived by a spouse or minor child, except to the spouse if there is no minor child.

Monks v. Smith, 609 So. 2d 740 (Fla. 1st DCA 1992). A devisee who also served as personal representative, collecting rents and suing in the estate’s name, was not estopped from asserting homestead. Because the protection is constitutional rather than equitable in origin, unclean hands cannot defeat it, and the First District reversed the order awarding the house to the University of Michigan.

In re Estate of Finch, 401 So. 2d 1308 (Fla. 1981). Leading case. Where a testator dies leaving a surviving spouse and adult children, the homestead may not be devised by leaving the spouse less than a fee simple interest. The Florida Supreme Court adopted the Fourth District’s position as its own.

Stirberg v. Fein, No. 4D22-0854 (Fla. 4th DCA Mar. 15, 2023). Adult children’s homestead claims had to be resolved before a court could reform a residence trust to upgrade the surviving spouse’s life estate to a fee, and a reformation that violated the less-than-a-fee bar could not cure the defect. The Fourth District quoted and applied Finch.

In re Estate of Donovan, 550 So. 2d 37 (Fla. 2d DCA 1989). Devising homestead to a trust in which the surviving wife was both trustee and sole beneficiary merged the legal and equitable estates, so the property vested in her as if there were no trust. The will’s “just debts” clause did not defeat it, and the Second District vacated the order vesting an interest in a third party and distinguished Finch.

Jacobs v. Jacobs, 633 So. 2d 30 (Fla. 5th DCA 1994). No devise restriction applied where no minor children survived and the spouse had waived by a valid antenuptial agreement, and the Fifth District reversed a § 57.105 fee award because the homestead position taken was not frivolous.

Lorraine v. Grover, Ciment, Weinstein & Stauber, P.A., 467 So. 2d 315 (Fla. 3d DCA 1985). In a legal-malpractice action over a failed homestead plan, the Third District held there was no way to draft a will that would have left the testator’s mother a life estate in his homestead, because the property was not subject to devise.

The Exemption Follows a Devise to an Heir

A Florida homeowner who leaves no surviving spouse and no minor child may devise the homestead, creditor protection intact, to any family member within the intestacy class, whether or not that person is the closest heir. The exemption survives the owner’s death and reaches the spouse or heirs free of creditors’ claims, and “heirs” means anyone who could take under the intestacy statute, without regard to dependency or rank (Lopez, 1988; Snyder, 1997; Williams, 1998; Traeger, 2004).

Snyder v. Davis, 699 So. 2d 999 (Fla. 1997). Leading case. A testator who leaves no surviving spouse and no minor children may devise the homestead with its creditor protection intact to any family member within the class the intestacy statute, § 732.103, describes, and not only to the closest consanguine heir. The amended article X, section 4(b), reflects an intent that the exemption inure to whomever the homestead passes, and the Florida Supreme Court quashed the First District’s contrary decision.

Walker v. Mickler, 699 So. 2d 687 (Fla. 1997), approving 687 So. 2d 1328 (Fla. 1st DCA 1997). Decided the same day as Snyder: a grandson devised a remainder interest was an “heir” under article X, section 4(b), though not the closest consanguine heir, and the court approved the First District’s decision “for the reasons set forth in Davis.”

Bartelt v. Bartelt, 579 So. 2d 282 (Fla. 3d DCA 1991) (en banc). Where no spouse or minor child survives, the homestead may be devised without limitation, and a devisee who belongs to the class of the decedent’s heirs takes the exemption. The en banc court receded from In re Estate of Hill so far as that decision barred devisees who are also heirs from claiming the exemption. “The test is not how title was devolved, but rather to whom it passed.”

Traeger v. Credit First National Ass’n, 864 So. 2d 1188 (Fla. 5th DCA 2004). An adult stepson, the son of the testator’s deceased husband, who was devised a half share was an “heir” under Snyder though lower in the intestacy hierarchy, so his half passed exempt from the estate’s creditors. The Fifth District reversed a probate court that had protected the natural daughter’s half but not his.

Williams v. Dorrell, 714 So. 2d 574 (Fla. 3d DCA 1998). “Heir” is read broadly and liberally, so a virtually adopted daughter was an heir entitled to an interest in the decedent’s homestead.

Public Health Trust of Dade County v. Lopez, 531 So. 2d 946 (Fla. 1988). The homestead descends directly to the spouse or heirs free of creditors’ claims, whether or not the heirs depended on the owner. The same decision confirmed that any natural person, and no longer only a head of a family, holds the exemption.

Mullins v. Mullins, 274 So. 3d 513 (Fla. 5th DCA 2019). An order determining homestead did not erase the life estates the mother’s will created, so a partition entered on the homestead order alone was error and the Fifth District reversed. Anyone within the intestacy class who is devised homestead takes the creditor protection whether or not next in line.

Webb v. Blue, 243 So. 3d 1054 (Fla. 1st DCA 2018). A testator with no surviving spouse or minor children could devise the homestead to a non-heir, but because the protection could not inure to that devisee, the property became part of the probate estate.

In re Estate of Hill, 552 So. 2d 1133 (Fla. 3d DCA 1989). Superseded in part. A decedent survived by neither spouse nor minor child may devise the homestead, and that holding stands. The further holding, that devisees, as distinct from heirs, took the property exposed to the estate’s creditors, did not survive: Bartelt receded from it and Snyder is inconsistent with it.

Cutler v. Cutler, 994 So. 2d 341 (Fla. 3d DCA 2008) (en banc). Devised property kept its homestead character even though title stood in a trustee’s name at the decedent’s death, but the court reversed the part of the order that found the property exempt from the decedent’s debts.

Descent Without a Valid Devise

Florida homestead that is not validly devised descends under the probate code: when a spouse and descendants both survive, the spouse takes a life estate with a vested remainder to the descendants, or may elect an undivided half instead.

Under § 732.401, undevised homestead descends as other intestate property, except that a decedent who leaves a spouse and descendants leaves the spouse a life estate and the descendants a vested remainder, per stirpes. The spouse may instead elect an undivided one-half interest as a tenant in common, by recording a notice of election no later than six months following the death and during the spouse’s lifetime; the election, once made, is irrevocable. The section does not apply to entireties property or joint tenancies with right of survivorship.

Wadsworth v. First Union National Bank of Florida, 564 So. 2d 634 (Fla. 5th DCA 1990). Section 732.401 vested nothing in an adult daughter, so where the surviving spouse had waived by prenuptial agreement the homestead passed under the will’s residuary clause, and the Fifth District affirmed. Judge Dauksch’s formulation, that the restriction protects only surviving spouses and minor children, was adopted the following year in Tescher and Hartwell.

Hartwell v. Blasingame, 564 So. 2d 543 (Fla. 2d DCA 1990). The surviving spouse’s valid prenuptial waiver bound the deceased spouse’s adult daughter, and because the devise was then one permitted by “law and the Florida Constitution,” the § 732.401(1) rule of descent did not apply.

In re Estate of Scholtz, 543 So. 2d 219 (Fla. 1989). Answering a certified question about the “natural person” amendment, the Florida Supreme Court confirmed that homestead has always descended free of creditors’ claims without regard to dependency. The court also recounted that earlier courts sometimes deemed a surviving spouse to have abandoned the homestead, which permitted a devise despite the proscription.

Who survives the owner	Can the homestead be devised?	If it is not devised
Spouse and minor child	No; any devise is a nullity (Monks, Fla. 1st DCA 1992)	Life estate to the spouse, vested remainder to the descendants, or the spouse’s half election (§ 732.401(1)–(2))
Minor child, no spouse	No (Monks)	As other intestate property (§ 732.401(1))
Spouse and adult children	Only to the spouse, and only in fee simple (Finch, Fla. 1981)	Life estate or the half election (§ 732.401(1)–(2))
Spouse who has waived, no minor child	Yes, without restriction (Tescher, Fla. 1991; Hartwell, Fla. 2d DCA 1990)	Under the will; § 732.401 does not apply (Hartwell)
Adult children only, no spouse	Yes, without limitation (Bartelt, Fla. 3d DCA 1991)	Intestate succession; the protection inures to the heirs (Snyder, Fla. 1997)
No spouse or minor child; devised to an heir	Yes, and the protection follows (Snyder; Bartelt)	Not applicable
No spouse or minor child; devised to a non-heir	Yes, but the protection does not follow; the home becomes a probate asset (Webb v. Blue, Fla. 1st DCA 2018)	Not applicable
Title held as tenants by the entireties or joint tenants with right of survivorship	Outside § 732.401 (§ 732.401(5))	Not applicable

Homestead Outside the Probate Estate

A general devise, an administration expense, and a creditor’s claim all fail against Florida homestead that passes to a spouse or an heir, because the protection attaches at the moment of death. Protected homestead is not a probate asset and does not come into the personal representative’s hands unless it is devised to someone to whom the protection could not inure (Thompson, 2000; Hamel, 2002; McEnderfer, 2005; Webb, 2018).

McKean v. Warburton, 919 So. 2d 341 (Fla. 2005). Leading case. Where a decedent is survived by neither spouse nor minor children, the homestead passes to the residuary devisees, not the general devisees, unless the will specifically directs that the property be sold and the proceeds made part of the general estate. The Florida Supreme Court answered the certified question in the negative and quashed the Fourth District’s decision.

McEnderfer v. Keefe, 903 So. 2d 234 (Fla. 2d DCA 2005), approved, 921 So. 2d 597 (Fla. 2006). Homestead’s constitutional protection takes precedence over the general rules on the priority of devises, so a $30,000 general devise could not be funded by selling the homestead that passed to another residuary devisee who was an heir. The Second District certified conflict with Warburton, and the supreme court approved its decision in light of McKean.

In re Estate of Hamel, 821 So. 2d 1276 (Fla. 2d DCA 2002). Homestead protection inured to the heirs when the owner died, so their rights attached before a later sale and the proceeds were protected from the decedent’s creditors; the Second District reversed. The decision is the modern source of the rule that homestead enters the probate estate only when a permitted devise goes to a person outside the protected class.

Harrell v. Snyder, 913 So. 2d 749 (Fla. 5th DCA 2005). Applying McKean, the Fifth District held that homestead passing through a residuary clause to an heir, rather than by specific devise, cannot be sold to satisfy a general cash bequest. It reversed an order that let the personal representative take possession and sell.

Thompson v. Laney, 766 So. 2d 1087 (Fla. 3d DCA 2000). A personal representative who was also a devisee and an heir should not have been surcharged for selling validly devised homestead and keeping the proceeds, because the will had not required the sale.

Lanford v. Phemister, No. 5D21-1372 (Fla. 5th DCA Apr. 8, 2022). Homestead sale proceeds that passed outside probate into a testamentary trust were not available to reimburse the personal representative’s fees and costs, but the same person’s fees as testamentary trustee were reimbursable from those proceeds. The Fifth District expressly declined to decide whether a trust beneficiary is an “heir” entitled to constitutional homestead protection.

A Will That Directs the Homestead to Be Sold Exposes the Proceeds to Creditors

When a Florida will specifically directs the homestead sold and the proceeds placed in the residue, the property loses its homestead character and the money becomes subject to creditors’ claims; proceeds in every other setting are a separate line of decisions.

Knadle v. Estate of Knadle, 686 So. 2d 631 (Fla. 1st DCA 1996). Because the will specifically directed that the homestead be sold and the proceeds placed in the residue, the property lost its homestead character and became subject to a creditor’s claim. The First District treated the question as controlled by Estate of Price v. West Florida Hospital, 513 So. 2d 767 (Fla. 1st DCA), cause dismissed, 518 So. 2d 1274 (Fla. 1987), the origin of the rule.

Estate of Shefner v. Shefner-Holden, 2 So. 3d 1076 (Fla. 3d DCA 2009). A testator who directs sale and distribution devises money rather than homestead, while a direction not to force the sale preserves the protection. Here the proceeds of the decedent’s homestead were exempt from creditors’ claims and administrative expenses, and the Third District affirmed, though “not for the trial court’s stated reason.”

Spousal Waiver of the Devise Restriction

A surviving spouse’s valid waiver removes the constitutional restriction on devising the homestead, because the provision protects only surviving spouses and minor children, and the disputes turn on whether a particular deed or agreement said enough to waive.

Section 732.702 lets a spouse waive homestead rights, wholly or partly and whether before or after the marriage, by a signed written contract, agreement, or waiver with two subscribing witnesses. A waiver of “all rights” waives homestead unless the instrument provides otherwise, as does a complete property settlement made after or in anticipation of separation or divorce. Fair disclosure of the estate is required only for an instrument signed after the marriage.

Section 732.7025 lets a spouse waive the devise restriction in a deed that carries the statutory waiver language or words substantially like it. That deed language waives neither the homestead’s protection from the owner’s creditors, while the owner lives or after death, nor the requirement that the spouse join any mortgage, sale, gift, or deed.

City National Bank of Florida v. Tescher, 578 So. 2d 701 (Fla. 1991). Leading case. Where a decedent is survived by no minor children and the surviving spouse has waived homestead rights, there is no constitutional restriction on devising the homestead. Article X, section 4(c), “is designed to protect two classes of persons only: surviving spouses and minor children.”

Feldman v. Schocket, No. 3D21-1817 (Fla. 3d DCA Sept. 21, 2022). Post-marriage mortgage waivers did not show that the surviving spouse meant to give up homestead protection: the estate was never fairly disclosed, the devise prohibition was never mentioned, and the waiver language was buried in documents of other legal significance. The Third District affirmed.

Mendia v. Galvez, No. 3D24-0716 (Fla. 3d DCA Aug. 27, 2025). A postnuptial agreement waiving the spouse’s interest in the marital home “on a subsequent dissolution of marriage” waived no homestead rights, because the waiver was contingent on a dissolution that never occurred. The Third District affirmed the summary judgment.

Friscia v. Friscia, 161 So. 3d 513 (Fla. 2d DCA 2014). Former spouses held the marital home as tenants in common, and the husband’s half kept its homestead protection despite the wife’s exclusive possession. That protection was subject to the other terms of their marital settlement agreement, and the agreement’s proceeds-division clause was not a waiver of homestead.

Taylor v. Taylor, 1 So. 3d 348 (Fla. 1st DCA 2009). A surviving spouse’s rights to homestead, exempt property, and family allowance are among the rights a written instrument under § 732.702 may waive.

Chames v. DeMayo, 972 So. 2d 850 (Fla. 2007). The creditor exemption is a separate question: a homestead waiver in an unsecured agreement is unenforceable, and that exemption yields only through mortgage, sale, or gift, a different constitutional function from a spouse’s waiver of the devise restriction.

Does a General Conveyance Waive a Spouse’s Homestead Rights?

Florida appellate courts have reached opposite results on whether a deed that never mentions homestead can waive a spouse’s rights, and the Third District has questioned whether Stone, the decision that allowed it, survives the deed-waiver statute.

Line one: general conveyancing language can waive. Stone v. Stone, 157 So. 3d 295 (Fla. 4th DCA 2014). A deed conveying the property “together with all the tenements, hereditaments, and appurtenances thereto belonging or in anywise appertaining” waived the surviving spouse’s constitutional homestead rights in the transferred half, and the Fourth District affirmed on that ground.

Weaver v. Hatfield, No. 1D2024-2423 (Fla. 1st DCA Nov. 19, 2025). A warranty deed assigning the wife “any marital and homestead interest” and “all rights, duties, and obligations” waived the husband’s homestead rights, so the property did not vest in him when she died and her later survivorship deed to her brother controlled.

Line two: it cannot without language releasing the spouse’s rights. Thayer v. Hawthorn, 363 So. 3d 170 (Fla. 4th DCA 2023). Deed language “granted, bargained and sold,” without language specifically releasing inheritance rights, did not waive homestead under § 732.702(1), and the court noted that § 732.7025 (2018) now prescribes the deed language that does.

Rogers v. Guardianship Program of Dade County, Inc., No. 3D23-1846 (Fla. 3d DCA Mar. 12, 2025). A quit-claim deed that contained no language expressly waiving homestead rights was void ab initio, and the Third District affirmed. The court said that “the enactment of section 732.7025 calls into question whether the language deemed sufficient in Stone would be sufficient to waive homestead rights today.”

The Third District has questioned whether Stone survives § 732.7025, and no Florida decision has resolved it; Thayer, from the same district as Stone, turned on different deed language and did not recede from it. For planning, whether a deed signed before § 732.7025 or drafted on an old conveyancing form gave up the spouse’s rights decides who owns the house.

When a Transfer Into Trust Is a Devise

Florida’s probate code classifies a lifetime transfer of homestead, including a transfer in trust, by the power the owner keeps: the transfer is not a devise if the owner retains no power to revoke or revest the interest.

Section 732.4017 keeps that result even when the transferor retains a separate interest such as a life estate, a term of years, a reversion, or a fractional fee, or when the transferred interest is postponed or defeasible. Section 732.4015(2) treats the grantor of a revocable trust as the homestead’s owner and a disposition by trust as a devise, so holding the homestead in a revocable trust does not escape the restriction. The Legislature’s stated intent was that § 732.4017 “clarify existing law.”

Stone v. Stone, 157 So. 3d 295 (Fla. 4th DCA 2014). Leading case. A transfer of homestead into a qualified personal residence trust under § 732.4017 is not a devise. But when the settlor fails to survive the trust term and the property reverts to his estate, a later disposition by his will is a devise and the restrictions apply.

Is a Trust Beneficiary an Heir Who Takes the Homestead Protection?

Whether a trust beneficiary is an “heir” who takes Florida’s homestead protection remains open: the Fifth District has expressly declined to decide it, while the First District has extended the exemption to a spendthrift-trust beneficiary.

HCA Gulf Coast Hospital v. Estate of Downing, 594 So. 2d 774 (Fla. 1st DCA 1991). The forced-sale exemption inures to a spendthrift-trust beneficiary who would have been entitled to claim homestead protection had title passed to her directly by devise or intestacy; the First District affirmed.

The Fifth District in Lanford (2022) expressly declined to decide the question, and the Third District in Cutler (2008) held that homestead character survived the trustee’s title but reversed the finding that the property was exempt. Whether title held in a trust or an entity qualifies as homestead at all is a separate question from whether a transfer into trust is a devise.

Spousal Joinder in Lifetime Transfers

Florida’s constitution bars a married owner from mortgaging, selling, or giving away the homestead unless the spouse joins the instrument, and that joinder rule is separate both from the devise restriction and from the creditor exemption.

Lyons v. Lyons, 155 So. 3d 1179 (Fla. 4th DCA 2014). A widow lacked standing to raise her deceased husband’s homestead rights to void a quitclaim deed into a residence trust that he had not signed. The Fourth District reversed the final summary judgment and the order dissolving the lis pendens.

Which of these holdings decides a particular estate turns on who survives the owner, how the home is titled, and whether a devisee is an heir, and Kelley’s homestead paradigm walks that sequence family configuration by family configuration.