In short: In Florida, a married homeowner usually cannot leave the homestead to anyone but the spouse. Under § 732.401, the surviving spouse gets a life estate in the home, or can elect within 6 months of the death to take a one-half interest as a tenant in common instead.
A husband dies. His will leaves the house to his kids from his first marriage. His second wife is still living in it.
Who owns the house?
In Florida, the will may not get the final word. The homestead has its own rules. They come from the Florida Constitution, and they are among the most technical rules in all of probate.
A Married Florida Homeowner Cannot Leave the Homestead to Whoever They Want
Article X, Section 4(c) of the Florida Constitution restricts how a homestead can be left at death when the owner is survived by a spouse or a minor child. If there is no minor child, the homestead may be devised to the spouse. Otherwise, the devise restrictions apply. A will that tries to leave the home to someone else does not control.
The policy is old and simple. Florida decided long ago that when someone dies, the spouse and children left behind should not be put out on the street.
What the Statute Gives the Surviving Spouse
When the homestead is not validly devised, Florida Statutes § 732.401(1) controls:
“…if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes.”
The spouse gets to live in the house for life. When the spouse dies, the house goes to the decedent’s descendants.
But there is a second option. Under § 732.401(2), the spouse can elect, instead of the life estate, to take “an undivided one-half interest in the homestead as a tenant in common,” with the other half going to the descendants.
The Election Deadline Is Six Months. Miss It and the Choice Is Made for You.
The election to take the one-half interest must be made within 6 months after the decedent’s death and during the spouse’s lifetime. It is filed as a notice of election in the public records of the county where the home sits. Once made, it is irrevocable.
Do nothing, and the spouse is a life tenant by default.
Staying in the House Is Not a Free Ride
The life estate sounds generous. Sometimes it is not.
A life tenant carries the ordinary costs of the property: property taxes, insurance, and upkeep. On a valuable house, those numbers add up fast. Homestead protection also does not wipe out a mortgage. The lender still gets paid.
So the real question for the surviving spouse is arithmetic. What will it cost to stay, for how many years, with what income? When the numbers do not work, the one-half tenancy in common can be the better path. It gives the spouse a real ownership share that can be sold.
That path has its own problem. The spouse now co-owns the house with the stepchildren. If they cannot agree on a sale, the next stop can be a partition lawsuit.
Creditors Usually Cannot Take the Homestead Either
Florida homestead protection also generally keeps a decedent’s creditors from forcing a sale of the protected homestead when it passes to the spouse or heirs. There are exceptions, the mortgage being the obvious one. The rules are covered in detail in Florida Homestead Creditor Protection: What Survives Death and What Doesn’t.
Where These Cases Go Wrong
- The family assumes the will controls the house. It may not.
- No one tells the spouse about the six-month election until it has passed.
- The spouse signs a deed or a waiver without understanding it. Spousal homestead rights can be waived in a properly executed written agreement under § 732.702, such as a prenuptial agreement.
- The house is listed for sale without every person who holds an interest signing off.
- Minor children are involved, which adds another layer of restriction.
The Bottom Line
If your spouse just died and you live in the home, figure out three things now: whether the home was protected homestead, what the will says (and whether it matters), and what staying in the house will cost. The six-month clock is already running.
For the full statutory walk-through, read You Cannot Leave Your Florida Home to Whoever You Want — § 732.401. This homestead issue is #5 on the Top Ten Florida Probate Issues list. If you are a surviving spouse, the elective share (30% of the elective estate) is a separate right you should look at at the same time.
Watch: the videos behind this article
Florida Probate Issue #5: Surviving Spouse Staying in the Home — Legal?
You Cannot Leave Your Florida Home to Whoever You Want — Here’s What the Law Says Instead § 732.401
Florida Homestead Creditor Protection: What Survives Death and What Doesn’t (§ 732.401)
Frequently Asked Questions
Can my spouse leave our Florida home to the kids instead of me?
Usually not. Article X, Section 4(c) of the Florida Constitution restricts how a homestead can pass when the owner leaves a spouse or a minor child. If there is no minor child, the home may be left to the spouse; other devises are restricted.
How long does a surviving spouse have to choose the one-half interest?
The election must be made within 6 months after the decedent’s death and during the spouse’s lifetime, by recording a notice of election in the county where the home is located. If no election is made, the spouse keeps a life estate.
Does a surviving spouse with a life estate have to pay the bills on the house?
Generally yes. A life tenant carries the ordinary costs of the property, such as property taxes, insurance, and upkeep. Homestead protection also does not eliminate an existing mortgage.
Can homestead rights be waived?
Yes. Spousal homestead rights can be waived in a properly executed written agreement under § 732.702, such as a prenuptial or postnuptial agreement.
Talk to a Florida probate litigator
Weidner Law, P.A. handles Florida probate, trust, and will disputes from St. Petersburg. If you need a probate litigation lawyer in St. Petersburg for homestead and surviving spouse disputes, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
