Florida homestead inheritance: who gets the house, and who signs.

First, this is not the property tax exemption

Florida uses “homestead” for two different things. The property tax exemption comes from Article VII, section 6 of the Florida Constitution and §196.031, and the owner applies with the county property appraiser by March 1 (§196.011). Mo’s homestead exemption guide covers that filing. This page is about Article X, section 4, which shields a homestead from most creditors and limits who can inherit it. The probate court can decide that status under Florida Probate Rule 5.405.

When a will cannot decide who gets the home

Article X, section 4(c) says the homestead is not subject to devise if the owner is survived by a spouse or a minor child, except that it may be left by will to the spouse when there is no minor child. Under §732.4015 the rule also reaches revocable trusts: a trust gift of the home counts as a devise. These facts can change the answer:

1. How title was heldSection 732.401 does not apply to property owned as tenants by the entirety or in joint tenancy with right of survivorship, and the probate code does not treat it as protected homestead (§731.201).
2. A spousal waiverA spouse can waive homestead rights in a written agreement signed in the presence of two subscribing witnesses; if it is signed after the marriage, each spouse must also have made fair disclosure of their estate (§732.702). Specific deed language can also waive these rights (§732.7025), but a deed waiver does not waive creditor protection or the spouse’s joinder in a sale. A spouse’s waiver does not lift the limits that apply when a minor child survives. Whether a particular waiver is valid is a question for your attorney.
3. Transfers during lifeA transfer the owner kept no power to revoke is not a devise and does not descend under §732.401 (§732.4017).

If the home passes by law: a life estate or a one-half share

When the home was not devised as the law allows, §732.401 says it descends like other property without a will, with one exception: if the owner leaves a spouse and descendants, the spouse takes a life estate and the descendants living at the death take a vested remainder, per stirpes. The Florida Bar’s probate guide puts it simply: the descendants receive the home only after the surviving spouse dies.

If an agent under a power of attorney or a guardian of the property acts for the surviving spouse, that person can make the election only with court approval, after the court finds it is in the spouse’s best interests; the petition must be filed within six months after the death and during the spouse’s lifetime, and the time to elect is then extended until at least 30 days after the court’s order (§732.401(2)). A spouse who does not want the life estate may be able to disclaim it under the formal requirements of chapter 739, and the descendants’ interests then cannot be divested (§732.401(4)). Talk to a Florida probate attorney before taking either step.

Why this matters for who signs a sale

While the owner is alive. Article X, section 4(c) lets the owner sell, mortgage or give away the homestead, joined by the spouse if married, even when only one name is on the deed. If the owner or spouse is incompetent, the Constitution leaves the method of selling or mortgaging to Florida law. An agent under a power of attorney acts only on authority the document specifically grants, and a married owner’s spouse, or the spouse’s guardian, must still join (§709.2201). A guardian of the property needs court approval to sell real property, including homestead (§744.441). The power of attorney guide explains what changes at death.

After the owner dies. Who holds title depends on how the home passed. If it was not validly devised and a spouse and descendants survive, §732.401 gives a life tenant and remaindermen, or co-owners after an election. A valid devise, survivorship title, or other heirs under §732.103 change that, so a Florida probate attorney and the title company should confirm who now holds title. Ask them early whose signatures a sale needs; a minor’s share may require a court step first. A 2002 Florida Bar Journal article notes that decisions about selling a homestead often involve conflicting interests between the life tenant and the remaindermen, so settle the plan before listing.

The personal representative’s role is limited. Under §733.607 and §733.608, protected homestead is not property the personal representative takes over or uses to pay claims. If no one with an apparent interest occupies it, the personal representative may take possession only to preserve, insure and protect it while its status is decided, and money spent doing that can become a recorded lien on the home. Ask about any such lien before you set a closing date.

What creditor protection covers

Article X, section 4(a) exempts a homestead owned by a natural person from forced sale and judgment liens, up to 160 contiguous acres outside a municipality or one-half acre inside one. The exceptions are taxes and assessments on the home, obligations for its purchase, improvement or repair, and labor performed on it. Section 4(b) passes these exemptions to the owner’s surviving spouse or heirs. A mortgage the owner signed is not erased; see the liens and mortgages guide. Whether a particular home qualifies is a question for the attorney.

How a court confirms homestead status

Florida Probate Rule 5.405, in the October 1, 2026 edition published by The Florida Bar, lets any interested person ask the probate court to determine the protected homestead status of real property owned by the decedent, or by the trustee of a revocable trust whose deceased settlor is treated as the owner.

1. A verified petitionIt covers the date of death, the county of domicile, whether there was a will, the surviving spouse and any waiver, the descendants and any minor children, the legal description, and how title was held.
2. Formal noticeInterested persons are served by formal notice.
3. The orderIt decides whether the property was protected homestead and, if so, names each person entitled to it and defines each person’s interest.

If a personal representative takes possession while status is pending, Rule 5.404 requires a filed notice of that limited possession.

What to gather before the attorney meeting

1. The recorded deedHow title was held can take the home outside §732.401.
2. The will, any trust, and any marital agreementThese show whether there was a devise or a waiver.
3. The family factsDate of death, the surviving spouse, every descendant, and the name and year of birth of any minor child.
4. The six-month dateIf a spouse survived, note the date six months after death so the election is considered in time.

Out of state? The remote sale plan keeps the local work moving.

Where Mo fits

Mo Mufti is a REALTOR® with LPT Realty, LLC, not an attorney or CPA. He does not decide whether a home is protected homestead, who inherits it, or how proceeds are divided. Once your attorney and title company confirm who holds the title, Mo can price and prepare the home, coordinate vendors, and keep the contract on the attorney’s timeline. A 2002 Florida Bar Journal article explains that splitting sale proceeds between a life tenant and remaindermen can carry federal gift or estate tax consequences; tax law has changed since then, so ask a CPA or attorney about your situation first. See also the estate-property sale guide and the inherited home guide.