Most Floridians assume that if they own a home, they can leave it to whoever they want in their will. That assumption is wrong — and the error often surfaces only after someone has died, leaving a family in a legal dispute over property that was never theirs to give away freely.
Florida’s Homestead Law Overrides Your Will
Florida’s homestead law is one of the most powerful — and most misunderstood — areas of Florida property law. Under Florida Statute § 732.401, if you own Florida homestead property and you are survived by a spouse or minor child, you cannot simply leave that property to whoever you want. The law imposes mandatory restrictions on how homestead property can be devised.
If you are survived by a spouse and no minor children: your spouse receives a life estate in the homestead automatically, with the remainder passing to your descendants. Alternatively, under a 2010 amendment, the surviving spouse can elect to take an undivided one-half interest in the homestead rather than the life estate.
If you are survived by minor children (whether or not you also have a surviving spouse): the homestead cannot be devised at all — it passes to your descendants per stirpes.
What Happens When a Will Conflicts With § 732.401?
When a will attempts to devise homestead property in a way that conflicts with § 732.401, the devising provision in the will is void — not voidable, void. Courts in Florida have consistently held that the constitutional and statutory homestead protections cannot be waived by a will. The property passes as the statute directs, regardless of what the will says.
This creates a class of cases where a surviving family member — often a second spouse or a child from a prior relationship — discovers that the decedent’s intended distribution is legally unenforceable. Those disputes end up in probate court.
Planning Around Florida Homestead Restrictions
Proper Florida estate planning accounts for the homestead restrictions before the will is drafted — not after. There are planning strategies that can minimize or address the impact of § 732.401, including the use of trusts, spousal agreements, and careful structuring of ownership. But those strategies must be put in place while the property owner is alive. Once they are gone, the statute controls. Contact Weidner Law to review your estate plan and ensure your Florida homestead is properly addressed.
Read the Exact Statute
The Florida statutes cited in this article are published word-for-word — free, complete, and fully organized — at FloridaRules.net.
FloridaRules.net — Every Florida Probate Rule, Statute, and Case Commentary. In One Place.
