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.

Ballard v. Pritchard, 332 So. 3d 570 (Fla. 2d DCA 2021). A homestead devise that leaves the surviving spouse a life estate and gives one adult son the remainder in fee is invalid, because Finch permits the spouse no less than a fee simple. The homestead therefore descended at the moment of death under section 732.401(1), giving the spouse a life estate and both sons a vested remainder per stirpes. Waiver could not reach the sons’ vested interest, and the decedent’s provision for the other son did not control over the constitution.

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.

Wilson v. Fridenburg, 19 Fla. 461 (Fla. 1882). Leading case. The origin of the devise restriction: where the homestead owner leaves children, the property is not the subject of testamentary disposition, and the entire interest vests in the children at his death. The court also held the heirs are necessary parties to any suit affecting the homestead after the owner’s death, so an executrix could not mortgage property the will never controlled. Decided under the 1868 Constitution, it is still quoted for the restriction, which survives as article X, section 4(c).

Estate of Murphy, 340 So. 2d 107 (Fla. 1976). Leading case. Where the owner is survived by a spouse and only adult children, the homestead may be devised to the spouse, and a general residuary clause is a sufficiently precise indicator of testamentary intent to pass it. A will speaks at the testator’s death, so a will executed before the 1972 amendment carried the homestead to the spouse.

In re Estate of McCartney, 299 So. 2d 5 (Fla. 1974). The 1968 Constitution’s “minor children” class repealed the probate statute’s broader “lineal descendants” formula, so an owner who left no minor child could devise the homestead to his surviving spouse. The court noted the November 7, 1972 amendment permitting a devise to the spouse where there is no minor child, and quashed the decision that had confined the widow to a life estate.

Jones v. Jones, 412 So. 2d 387 (Fla. 2d DCA 1982). The constitution as it reads at the testator’s death, not at the execution of the will, controls whether the homestead may be devised. A will signed before the 1972 amendment validly passed the homestead when the owner died in 1980 leaving a spouse and adult children; the earlier text gave a child no vested right.

Iandoli v. Iandoli, 504 So. 2d 426 (Fla. 4th DCA 1987). A residuary clause giving the widow an undivided one-half interest as a tenant in common, and the other half to an adult daughter, was not a permitted devise: Finch lets the spouse take only the entire fee. The bar on a testator’s devise of a half interest is distinct from § 732.401(2), which lets a surviving spouse elect an undivided half of an undevised homestead.

In re Estate of Boyd, 519 So. 2d 692 (Fla. 4th DCA 1988). The spousal-abandonment doctrine of Barlow v. Barlow did not survive the amendment substituting “a natural person” for “the head of a family,” so a devise was barred even though the surviving spouse had not lived with the owner. The Florida Supreme Court quoted the passage in In re Estate of Scholtz, 543 So. 2d 219 (Fla. 1989), and said it was compelled to agree.

Anderman v. Miller, 359 So. 2d 472 (Fla. 3d DCA 1978). An owner who died November 6, 1968, two months before the 1968 Constitution took effect January 6, 1969, was governed by the 1885 text, under which “children” meant children of any age, so the homestead could not be devised. No estoppel arose from the owner’s earlier transfer of the home into his wife’s name.

Estate of Deem v. Shinn, 297 So. 2d 611 (Fla. 4th DCA 1974). A divorced father who lived alone and evaded his duty to support his minor daughter still owed her a legal duty of support, so the property was homestead, could not be devised, and descended to his lineal descendants despite an express disinheritance. The restriction protects a minor child wherever the child lives; the head-of-family framing the court applied belongs to the pre-1985 era.

Beck v. Wylie, 60 So. 2d 190 (Fla. 1952). The historical source of the “family in fact” test: a mother who housed and supported her adult daughter headed a family, so her home was homestead and could not be devised into a spendthrift trust. The decision survives as the source of the headship test, not as a devise rule, because an adult child no longer blocks a 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.

Hubert v. Hubert, 622 So. 2d 1049 (Fla. 4th DCA 1993). Leading case. A decedent devised the homestead to his son, an heir, subject to a life estate in a friend who was not; the exemption inured to the son’s remainder interest, which the decedent’s creditors could not reach. The Florida Supreme Court cited the decision approvingly in Snyder v. Davis.

Hinson v. Booth, 39 Fla. 333 (Fla. 1897). The word “inure” is a shield, not a title: what passes to the widow and heirs is immunity from the ancestor’s debts, while their ownership comes entirely from the descent statutes. The constitutional restrictions on alienation and devise confine themselves to the real estate; the personalty exemption was freely devisable. Both propositions date to the 1885 Constitution and are still structural.

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. It held that the Barlow abandonment concept did not survive the 1985 amendment substituting “a natural person” for the former head-of-family definition. Scholtz lived apart from his wife from 1956 until his death, but he died leaving a spouse, so the homestead could not be devised. The court approved the district court’s decision; two justices dissented.

Bayview Loan Servicing, LLC v. Giblin, 9 So. 3d 1276 (Fla. 4th DCA 2009). A home the decedent titled in his own name, where his separated wife and daughter lived while he never did, was his homestead. His will could not devise it, and the spouse took a § 732.401(1) life estate with a vested remainder in the descendants. A mortgage the personal representative gave a lender during probate could not defeat that descent.

Breausche v. Prough, 592 So. 2d 1211 (Fla. 2d DCA 1992). A widow who takes only a life estate because the home stood in her husband’s name alone may still assert a constructive trust against the remainder, where she paid toward the home and relied on his promise that it would be hers. The Second District reversed a summary judgment for the children, and the decision predates the half-interest election § 732.401(2) added in 2010.

Chapman v. Chapman, 526 So. 2d 131 (Fla. 3d DCA 1988). A 1955 deed the owner signed alone, purporting to create an entireties estate with his second wife, was void under the 1885 text, which Jameson does not reach retroactively. The will’s life-estate scheme was likewise a nullity, but the descent statute produced the same result: a life estate in the widow, a vested remainder in the lineal descendants. A life tenant who fails to pay the property taxes commits waste, and the remedy is a receiver, not acceleration of the remainder.

Spitzer v. Branning, 139 Fla. 259, 190 So. 516 (Fla. 1939). A widow’s codicil devising “my home” passed only the undivided one-half interest she actually held, and her devisees took no more. Devisees who paid taxes and upkeep stand as coparceners in possession, entitled to an accounting that credits their outlay and charges them the use value of the property.

Moore v. Price, 98 Fla. 276, 123 So. 768 (Fla. 1929). Property ceases to be homestead at the owner’s death, so nothing in the homestead article prevents partition among the widow and heirs once the owner dies. Under the 1885 text a will disposing of the homestead was void where a child survived, and a widow who accepted the will’s valid provisions lost none of her homestead rights.

Scull v. Beatty, 27 Fla. 426 (Fla. 1891). The 1868 Constitution’s exemption accrued to the heirs without regard to their residences or ages; as to his homestead, a testator who left a will died intestate. The land descended to the decedent’s non-resident adult children, and the surplus of a post-death foreclosure sale followed it, reaching them free of forced sale.

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. 5D21-1015 (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.

Denham v. Sexton, 48 So. 2d 416 (Fla. 1950). Leading case. Homestead the spouses hold as tenants by the entireties becomes the survivor’s sole property at the first death, excluding the decedent’s heirs, and the couple may convey it as they could any other property. The decisions striking down consideration-less homestead deeds all involved title vested solely in the family head; a stranger to the title cannot attack a homestead deed.

Knapp v. Fredricksen, 148 Fla. 311, 4 So. 2d 251 (Fla. 1941). A deed to husband and wife creates an entireties estate absent contrary intent, and the husband’s homestead exemption terminates with his estate in the land, which becomes the surviving wife’s sole property; no exemption inures to his heirs. A recorded sworn declaration of homestead is merely evidence of homestead status and cannot change how title passes.

Kinney v. Mosher, 100 So. 2d 644 (Fla. 1st DCA 1958). Property the spouses hold by the entireties passes to the survivor by operation of law, outside the constitutional and statutory rules governing homestead descent. In Moxley v. Wickes Corp. the Florida Supreme Court confined the decision to descent and distribution; entireties property can still qualify for the forced-sale exemption.

Ostyn v. Olympic, 455 So. 2d 1137 (Fla. 2d DCA 1984). When the owner and a third party hold the marital home as joint tenants with right of survivorship, nothing remains at the owner’s death that a surviving spouse’s homestead interest can reach. The court applied the Denham reasoning to a joint tenancy with someone other than the spouse.

Spitzer v. Branning, 135 Fla. 49, 184 So. 770 (Fla. 1938). A county judge sitting in probate had no jurisdiction to adjudicate rights in homestead property, and merely reciting the property’s description in probate papers could not confer it. The probate-chancery divide it rests on ended with the 1973 revision of Article V; what survives is that homestead passes outside the probate estate.

In re Estate of Comstock, 143 Fla. 500, 197 So. 121 (Fla. 1940). A mortgagee who filed no claim within the non-claim period could not have the mortgage debt paid out of the estate’s other assets and was limited to enforcing the lien against the mortgaged homestead itself. A will’s direction to pay “all debts” reaches only debts timely presented, and the 1933 Probate Act section the court construed has modern analogues in §§ 733.702 and 733.710.

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 Price v. West Florida Hospital, 513 So. 2d 767 (Fla. 1st DCA), cause dismissed, 518 So. 2d 1274 (Fla. 1987). Margarette Price’s will directed that her homestead be sold and the proceeds split between her adult son and daughter. A hospital creditor claimed the proceeds carried no homestead character, and the First District agreed. A lifetime sale and distribution to the children would have stripped the money of its protection, and the will’s post-death sale, made without any intent to reinvest, reached the same result. The circuit court’s decision was affirmed.

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. 3D21-1509 (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. 3D24-0798 (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.

Rutherford v. Gascon, 679 So. 2d 329 (Fla. 2d DCA 1996). A surviving spouse’s fee simple interest vests immediately at the owner’s death, and a settlement agreement in which she accepted a life estate did not waive it, because there can be no waiver without knowledge of the right being waived. Equitable estoppel cannot nullify a homestead interest, and survivors do not waive by unwittingly treating the home as a probate asset.

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.

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.

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. 3D24-1405 (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.

In re Estate of Johnson, 397 So. 2d 970 (Fla. 4th DCA 1981). Leading case. An owner who deeds the homestead to himself as trustee of a revocable trust keeps the entire beneficial interest, so the transfer operates as a will and cannot escape the devise restriction where a spouse or minor child survives. Section 732.4015(2) now codifies the holding.

Goddard v. Bacon, 611 So. 2d 80 (Fla. 2d DCA 1992). A personal representative had no standing to attack an owner’s transfer of her home into her revocable trust, because the owner had no spouse and no minor child and the restriction protects only those two classes. The holding goes only to standing; it is not a general license for revocable trusts. Where a spouse or minor child survives, the devise restriction reaches the trust.

Aronson v. Aronson, 81 So. 3d 515 (Fla. 3d DCA 2012). A revocable trust could not carry the settlor’s homestead past his surviving spouse; at his death the condominium passed outside probate to the widow for life, remainder to the two sons, and the trustees lost all power over it. The life-tenant widow bore the ordinary expenses and got no reimbursement for the $129,895 she used to retire the mortgage before her husband’s death.

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 to a third party unless the spouse joins the instrument; a deed running to the owner and spouse as tenants by the entirety needs no joinder.

Deeds to a Third Party

Taylor v. Maness, 941 So. 2d 559 (Fla. 3d DCA 2006). Leading case. A court cannot decree specific performance of a contract to sell homestead signed by the title-holding husband alone, because both spouses must join a conveyance to a third party and the decree would be the forced sale the constitution forbids. The non-titled wife needed no record title, because a beneficial interest suffices, and she had an absolute legal right to block the contract, defeating the tortious-interference counts.

Gotshall v. Taylor, 196 So. 2d 479 (Fla. 4th DCA 1967), cert. denied, 201 So. 2d 558 (Fla. 1967). A husband’s consideration-less straw-man conveyance of homestead to himself and his wife as tenants by the entireties was void ab initio, and neither a later divorce nor the husband’s death breathed life into it. The daughter, as sole heir, took the property; the 1967 decision is the source the modern void-deed line still cites.

Clemons v. Thornton, 993 So. 2d 1054 (Fla. 1st DCA 2008). A deed by which the owner gave himself and his wife a life estate needed no joinder, but the same deed’s grant of the remainder to a third party failed without her joinder. The failed remainder did not enlarge the widow’s estate; the owner kept it, and at his intestate death it vested in his lineal descendants per stirpes.

Ezem v. Federal National Mortgage, 153 So. 3d 341 (Fla. 1st DCA 2014). Record title is not a prerequisite to homestead status: a husband whose name was not on the deed could still intervene and block the foreclosure sale of the home titled in his wife’s name. If the wife was married when she executed the mortgage as “a single woman,” she could alienate only her own interest.

Steadly v. Weinberg, 979 So. 2d 445 (Fla. 4th DCA 2008). An unmarried owner who contracted to sell his homestead, defaulted, and then married made his new spouse an indispensable party to the buyer’s specific-performance suit, because a decree would affect her joinder rights. Executing a contract for sale does not by itself impair homestead status.

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.

Stokes v. Whidden, 97 Fla. 1057, 122 So. 566 (Fla. 1929). A wife appointed guardian of her insane husband could not convey the homestead, because the 1885 Constitution required the joint consent of husband and wife and her guardianship did not supply his. Whether equity could authorize someone to act for an incapacitated spouse was expressly left open, and it remains the practical problem when one spouse lacks capacity.

Jahn v. Purvis, 145 Fla. 354, 199 So. 340 (Fla. 1940). A deed of homestead the husband executed alone, purporting to convey it to his wife, was a nullity that conferred no right, title, or interest, so the widow’s later warranty deed passed nothing and her possession was never adverse to the heirs. The heirs sued within the seven-year period, but equity required them to reimburse the good-faith purchaser the net value of his permanent improvements, secured by a lien.

Jacobs v. Berlin, 158 Fla. 259, 28 So. 2d 539 (Fla. 1946). A chancellor properly refused specific performance of a contract to convey land where part of the premises was beyond question the defendant’s homestead and not readily divisible from the rest. The court later confined the decision to one proposition, that specific performance is unavailable without joint consent and due execution by both spouses (Scott v. Hotel Martinique).

Moore v. Moore, 237 So. 2d 217 (Fla. 4th DCA 1970), cert. denied, 240 So. 2d 644. Under the 1885 Constitution a homestead deed the owner signed alone, whether it ran directly to his wife or created an entireties estate, was void ab initio, and estoppel could not revive it. That is pre-1968 law: under the current constitution an interspousal transfer of homestead is valid, as Jameson holds, and Chapman confirms that Jameson does not apply retroactively.

Robbins v. Robbins, 360 So. 2d 10 (Fla. 2d DCA 1978). A 1966 deed conveying the homestead to the owner and his second wife as tenants by the entirety, executed without her joinder and supported only by nominal consideration, was void, and § 689.11(2) could not validate it. The children’s interest vested when the owner died before the 1968 Constitution took effect; on the same facts after 1968, Jameson comes out the other way.

Nordman v. McCormick, 715 So. 2d 310 (Fla. 5th DCA 1998). A 1917 deed gratuitously conveying the homestead to the wife without her joinder, while a minor son lived, was void ab initio under the 1885 Constitution, because a statute cannot modify a constitutional requirement. The widow took a life estate at the owner’s 1964 death with remainder to his issue per stirpes, and on her death the surviving issue took fee simple as co-owners.

James v. James, 843 So. 2d 304 (Fla. 5th DCA 2003). The surviving spouse defended a quit-claim deed of the homestead on article X, section 4(c) grounds, and her summary-judgment affidavit on the property’s status stood where the children offered only a bare denial in a discovery response. The Fifth District affirmed independently because the attorney-in-fact had exceeded a power of attorney capping gifts at $10,000 per child.

Conveyances Between Spouses

Jameson v. Jameson, 387 So. 2d 351 (Fla. 1980). Leading case. Article X, section 4(c) does not require the non-owning spouse to join when the sole owner conveys the homestead to himself and that spouse as tenants by the entirety; joinder by a grantee spouse does not protect the heirs. Section 689.11(1) is consistent with the constitution, and the Court reversed the district court decision that had voided the deed and struck the statute down.

Long v. Cavage, 384 So. 2d 1356 (Fla. 5th DCA 1980). Under the 1885 Constitution a husband’s deed of homestead to himself and his wife required consideration, but the question is one of proof: the deed recited ten dollars and other valuable consideration, and absent contrary evidence the recital was presumptively correct. Summary judgment voiding the deed was error; the court followed Wise v. Wise, 134 Fla. 553, 184 So. 91 (Fla. 1938), and Daniels v. Mercer.

Daniels v. Mercer, 105 Fla. 362, 141 So. 189 (Fla. 1932). A homestead owner could deed the homestead to some of his own children where the deed was duly made in good faith, rested on appropriate consideration, and served no illegal purpose. A reservation of the grantors’ life use did not stop title passing on delivery; the consideration requirement itself belongs to the 1885 era.

Mortgages, and Whether They Are Void

Pitts v. Pastore, 561 So. 2d 297 (Fla. 2d DCA 1990). Leading case. A mortgage of homestead signed by the owner without the spouse’s joinder is not void: a mortgage is an executory contract, ineffectual as a lien until the spouse joins or the property loses its homestead status. The lien here attached when the marriage ended and the homestead status with it, so the owner’s later third marriage did not invalidate it.

Heath v. First National Bank in Milton, 213 So. 2d 883 (Fla. 1st DCA 1968). A wife’s bare signature on a business mortgage that nowhere named her did not supply the joint consent the constitution requires; the requirement is strictly construed in favor of the homestead claimant, and an ambiguous instrument is construed against its drafter.

Henry v. First Indiana Bank (In re Henry), 200 B.R. 59 (Bankr. M.D. Fla. 1996). A spouse who signs a homestead mortgage without fraud or duress alienates her homestead interest whatever the defects in the notary acknowledgment; an incomplete acknowledgment and a non-fraudulent change to the execution date are clerical errors that do not invalidate the mortgage. The signing parties are estopped from denying it, the modern echo of New York Life Insurance Co. v. Oates.

Smith v. Reverse Mortgage Solutions, Inc., 200 So. 3d 221 (Fla. 3d DCA 2016). Article X, section 4(c) required the wife’s signature to encumber the homestead at all, which is why she counted as a borrower whose occupancy kept the reverse-mortgage loan from maturing at her husband’s death.

Crawford v. Federal National Mortgage Ass’n, 266 So. 3d 1274 (Fla. 5th DCA 2019). Spousal joinder is required to encumber homestead even where only the signing spouse holds record title, so a refinance the husband executed as “a single man” while married could not be foreclosed. A court may still impose an equitable lien limited to the money that actually benefited the homestead. The $50,135.58 that retired two prior mortgages stayed; the $44,576.31 disbursed as cash came out; and 51% of each payment applied against the lien, matching the loan share that benefited the homestead.

Isaacs v. Federal National Mortgage Ass’n, 373 So. 3d 1172 (Fla. 3d DCA 2022). A non-owner spouse’s abandonment of the homestead does not waive the section 4(c) joinder requirement for a mortgage. The husband had separated in the 1980s and quit-claimed his interest to his wife, yet her 2005 mortgage still needed his signature because the property was her homestead when she gave it. Since the 1985 amendment the definition reaches any natural person, so In re Scholtz, which barred waiver by abandonment of the devise restriction, governs the restraint on alienation too.

Capalongo v. Deutsche Bank National Trust Co., 386 So. 3d 238 (Fla. 2d DCA 2024). A non-owner spouse validly joined a homestead mortgage by signing a same-day, recorded waiver that expressly stated he joined the security instrument and waived his homestead rights. The waiver did not have to be physically attached to the mortgage, because there are no constitutional restrictions on how a spouse joins.

Brown v. Towd Point Mortgage Trust 2017-6, 423 So. 3d 887 (Fla. 4th DCA 2025). A purchase-money mortgage on homestead was unenforceable in foreclosure because the owner’s spouse did not join it in any way. Article X, section 4(a)’s purchase-money exception to the forced-sale exemption does not displace section 4(c)’s restraint on alienation, which reaches the initial acquisition as much as any later transfer. What section 4(c) requires is the spouse’s participation, not any particular document: the husband in Capalongo signed a recorded waiver, while the husband here signed nothing at all.

Pre-1968 Acknowledgment Formalities

The separate-acknowledgment decisions. Before the 1968 Constitution, a homestead deed or mortgage was ineffective unless the wife acknowledged it separately from her husband, on a private examination before the officer, and noncompliance was fatal. Representative decisions include Shad v. Smith, 76 So. 897 (Fla. 1917); Hutchinson v. Stone, 84 So. 151 (Fla. 1920); and Murphy v. Duncan, 149 So. 594 (Fla. 1933). What survives is the premise those decisions state: alienation of homestead is permitted only by the method the constitution prescribes.

New York Life Insurance Co. v. Oates, 141 Fla. 164, 192 So. 637 (Fla. 1939). A wife who willingly signed a homestead mortgage, then let her husband obtain the official certificate of her acknowledgment in her absence, could not later avoid the mortgage against a bona fide assignee; both spouses were estopped in equity. The certificate is prima facie valid until duly shown invalid for duress or another cause, and the court was explicit that estoppel does not nullify the constitution’s requirements.

Bigelow v. Dunphe, 143 Fla. 603, 197 So. 328 (Fla. 1940), rehearing denied, 144 Fla. 330, 198 So. 13 (Fla. 1940). A married woman who owned the home and was in fact the head of the family still could not convey or mortgage it without her husband joining. Homestead character is a matter of use, ascertainable from physical appearance rather than the record, so a mortgagee is charged with notice of an actual, open, and exclusive possession.

Scott v. Hotel Martinique, Inc., 48 So. 2d 160 (Fla. 1950). A contract to sell entireties homestead that husband and wife jointly executed before two subscribing witnesses could be specifically enforced without the wife’s acknowledgment; the 1943 statutory amendments made a married woman’s acknowledgment necessary only for recordation, not due execution. It is the decision that retired the separate-acknowledgment requirement.

Lifetime Deeds Attacked by Heirs

A lifetime conveyance of Florida homestead stands against the heirs if it rests on valuable consideration and involves no fraud, deceit, undue influence, or duress, and it is void, incurably so, if it does not.

Jackson v. Jackson, 90 Fla. 563, 107 So. 255 (Fla. 1925). A husband with living children could not pass his homestead to his wife, consideration-free, through a straw man who reconveyed it, because what the constitution forbids directly it also forbids indirectly. The decision opened the straw-man line the Florida Supreme Court reaffirmed through the 1940s.

Church v. Lee, 102 Fla. 478, 136 So. 242 (Fla. 1931). The Jackson rule reached a deed made directly to the wife: a direct conveyance fared no better than one routed through a conduit. The statute letting a husband deed directly to his wife did not reach homestead realty, because such a transfer would abrogate the children’s inheritable rights.

Norman v. Kannon, 133 Fla. 710, 182 So. 903 (Fla. 1938). A homestead the husband owned in his sole right could not be routed through a straw man back into an entireties estate that would give the wife the whole by survivorship. The court stated the contrast expressly: had the couple acquired the property as entireties in the first place, the widow would have taken the whole and no exemption would have inured to the heirs.

Reed v. Fain, 145 So. 2d 858 (Fla. 1962) (on rehearing). Leading case. A consideration-less conveyance of homestead through a conduit, where the owner has a living child, is void, not merely voidable, and is not valid even between the parties. Former § 95.23 could not breathe life into a void homestead deed, and an heir’s interest during the owner’s lifetime is inchoate, not vested. The 1962 rehearing opinion controls, not the vacated 1961 opinion, and the statute it construed has since been replaced by § 95.231.

Jones v. Equitable Life Assurance Society, 126 Fla. 527, 171 So. 317 (Fla. 1936). A conveyance through an intermediary that gave the owner and his wife life estates, remainder to the owner’s own children, was not vitiated by its homestead character; a deed to the grantor’s own children is otherwise regular. The claimants had also waited thirty-four years while the deed stood of record, and laches barred them independently.

Miller v. Mobley, 136 Fla. 351, 186 So. 797 (Fla. 1939). Spouses who actually sold the homestead for full consideration and moved off abandoned it; when they later took it back as an estate by the entireties, it acquired a new homestead status and the whole title passed to the surviving wife. The court expressly distinguished the conduit cases, because here there was a valid and binding sale for sufficient consideration.

Scoville v. Scoville, 40 So. 2d 840 (Fla. 1949). The only express restriction Florida law placed on a voluntary deed of homestead was joint consent and due execution by both spouses; children in being when the deed was signed were wholly immaterial. Marriage is a consideration of the highest value for a wedding-gift deed, and adult sons living elsewhere did not make their father the head of a family.

Regero v. Daugherty, 69 So. 2d 178 (Fla. 1953). Homestead is subject to conveyance just as any other property; the beneficiaries can attack the deed only where it is infected by fraud, deceit, undue influence, or duress or lacks valuable consideration. Ten years of a daughter’s household services were valuable consideration for her mother’s deed of the home to her.

Hay v. Wanner, 204 F.2d 355 (5th Cir. 1953). The 1885 Constitution did not forbid a straw-man conveyance into an entireties estate where the wife paid adequate consideration from her separate estate and the transaction was bona fide; the decisions voiding such deeds all involved gratuitous transfers. A pre-nuptial promise of marriage plus roughly $1,500 the wife spent repairing the house was adequate.

Gregory v. Lloyd, 284 F. Supp. 264 (N.D. Fla. 1968). A duly executed and recorded homestead deed carries a presumption of validity, and the attacking heirs bear the burden of proving lack of consideration, fraud, or sham. Seventeen years of a son’s services caring for his parents, plus $700 supported by the documentary stamps, were ample consideration, and a deed actually delivered cannot be a sham.

Morgan v. Riley, 239 So. 2d 524 (Fla. 1st DCA 1970). Whether a wife who paid $10 when she signed and contributed no less than half the cost of building the new house from her own wages gave valuable consideration could not be resolved on summary judgment. On such a motion the evidence and its inferences are construed most strictly against the movant.

Ostrander v. Carl S. Swisher Foundation, Inc., 373 So. 2d 398 (Fla. 1st DCA 1979). A conveyance of the remainder interest to a charitable foundation satisfied the implied consideration requirement, because the grantor received an immediate federal income-tax reduction of roughly $52,000 and consideration need not flow from the grantee. Every decision voiding a gratuitous transfer involved a gift to a spouse or child, directly or through a straw person.

Further straw-man decisions. Under the 1885 Constitution an owner with living children could not place the home beyond their reach by deeding it, consideration-free, directly or through a straw man, and the courts struck such deeds down. The line also includes Bess v. Anderson, 136 So. 898 (Fla. 1931), and National Bank of Jacksonville v. Winn, 30 So. 2d 298 (Fla. 1947). Those decisions rest on the 1885 premise that any living child blocked the transfer; today only a surviving spouse or minor child restricts a devise, and the joinder and valuable-consideration requirements survive.

Witnesses and Execution Formalities

Since the 1968 Constitution dropped the words “duly executed,” a mortgage of Florida homestead and a contract to sell one no longer need two subscribing witnesses, though a deed still does.

Moxley v. Wickes Corp., 356 So. 2d 785 (Fla. 1978). A mortgage of homestead need no longer be signed before two attesting witnesses: the requirement came from the 1885 Constitution’s “duly executed,” which the 1968 revision dropped, and no statute imposes witnesses on a mortgage.

Carroll v. Dougherty, 355 So. 2d 843 (Fla. 2d DCA 1978). The same reasoning reaches contracts: a contract to sell homestead no longer requires two subscribing witnesses, because the witness requirement for contracts came only from the deleted “duly executed” language and the deed statute has never applied to contracts.

Williams v. Foerster, 335 So. 2d 810 (Fla. 1976). The deed side of the asymmetry: a deed bearing only one subscribing witness failed under § 689.01, and the husband also lacked any intent to convey. The homestead alienation restrictions do not apply to property the spouses already hold as tenants by the entireties, which passes to the survivor free of the heirs’ claims, so § 689.11 is not unconstitutional.

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.