Florida Homestead After Death

Florida homestead protection does not end when the owner dies. The homestead remains exempt from the decedent’s creditors, passes outside of probate, and transfers to the surviving spouse or heirs regardless of how much the owner owed at death. But the Florida Constitution also restricts who can receive the homestead, and those restrictions create complications that families often do not anticipate.

Creditor Protection Continues After Death

A judgment creditor who could not force the sale of a debtor’s homestead during the debtor’s lifetime gains no additional rights upon the debtor’s death. 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 liquidated to pay the decedent’s creditors.

This is one of the strongest features of Florida homestead law. Even if the decedent owed millions in unsecured judgments, the homestead passes to the heirs free of those claims. The creditor protection applies automatically and does not require any filing or court action to take effect.

Moving to a Care Facility Before Death

A common concern arises when the homeowner moves to a nursing home or long-term care facility before death. If the owner is no longer physically living in the home at the time of death, does the property lose its homestead status?

Florida courts have consistently held that temporary absence does not constitute abandonment. Moving to a care facility for medical reasons is not treated as abandoning the homestead 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. As a result, a homeowner who spends months or even years in a nursing home before dying generally retains homestead protection through death, and the property passes to the heirs free of creditor claims.

Devise Restrictions

The Florida Constitution limits who can inherit homestead property, 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.

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 the owner’s wishes.

If the owner is survived by neither a spouse nor minor children, the homestead can be freely devised to anyone.

These restrictions apply even when the homestead is held in a revocable living trust. A trust can avoid 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.

What Happens Without a Will

When a homestead owner dies intestate, the property descends according to Florida Statute Section 732.401, sometimes illustrated through a framework known as Kelly’s Homestead Paradigm. The outcome depends on the family structure at the time of death.

If the decedent is survived by a spouse but no descendants, the surviving spouse inherits the homestead outright.

If the decedent is survived by a spouse and one or more descendants—whether minor or adult—the surviving spouse receives a life estate in the homestead, with a vested remainder passing to the decedent’s descendants. The surviving spouse may elect, instead of the life estate, to take an undivided one-half interest in the homestead as a tenant in common. This election must be made within the timeframe established by Florida statute.

The life estate versus one-half election has significant practical consequences. A life estate gives the surviving spouse the right to live in the home for life but no ability to force a sale without the remainder holders’ consent. Taking a one-half interest as tenant in common gives the surviving spouse an ownership stake that can be partitioned, which effectively allows the spouse to force a sale and collect half the proceeds.

If there is no surviving spouse, the homestead descends to the decedent’s lineal descendants per stirpes.

Selling the Homestead After Death

Families often assume that selling a deceased parent’s homestead is straightforward, particularly when the parent used a living trust to avoid probate. In practice, it is more complicated than expected.

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 that the decedent owned the property, 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 prior homestead tax exemption filing is not conclusive evidence 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 issue title insurance. 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 sole purpose of the proceeding is to petition the court for an Order Determining Homestead Status, which the probate court routinely grants. This order confirms the property is exempt from creditor claims and allows the title company to insure the sale.

For families who expected to avoid probate entirely through trust planning, this requirement can be an unwelcome surprise. The proceeding is usually straightforward and limited in scope, but it does involve court filings, potential notice to creditors, and attorney involvement.

For a complete overview of Florida homestead creditor protection, see the Florida homestead law guide. For information on how spousal rights affect homestead during marriage, see spousal consent and homestead rights. For estate planning considerations involving homestead property, see homestead and trusts.