The call often comes from out of state. Mom or Dad has died in Florida, the house is sitting empty, and the family wants to know two things: who owns it now, and can they sell it?
In most states, a home passes like any other asset, under the will or under the state's intestacy rules. Florida is different. If the home was the owner's primary residence, it is likely "Homestead" property, and the Florida Constitution lays out rules that can override the will, shield the house from creditors, and change who must sign the deed at closing.
Families who were not expecting any of this tend to find out at the worst possible time, usually when a buyer is secured, and the title company starts asking questions.
"Homestead" Means Three Different Things in Florida
Floridians use the word for three separate legal concepts, and they constantly get misused.
The property tax exemption. This is the one most homeowners know about: the reduction in taxable value and the Save Our Homes cap on annual assessment increases. The county property appraiser administers it under rules set by the Florida Department of Revenue, and it has nothing to do with who inherits the house.
Protection from creditors. Article X, Section 4 of the Florida Constitution protects a Homestead from forced sales by most creditors. Frequently, that protection passes to the owner's heirs, so the house does not have to be sold to pay the decedent's credit cards or medical bills. It does not protect against the mortgage, property taxes, or liens for work done on the house. For how other debts are managed, see the FAQ on creditor claim deadlines in Florida probate.
Restrictions on who can inherit. If the owner left behind a spouse or a minor child, Florida law limits what the owner could do with the home, no matter what the will says. Most families have never heard of this one.
When the Will Doesn't Control the House
Inheritance restrictions depend on who survived the owner.
If there is a surviving spouse and children. Unless the spouse signed a valid waiver (in a prenuptial agreement, for example) or the house was left outright to the spouse, Section 732.401, Florida Statutes, gives the surviving spouse a life estate in the home, with the children or other descendants holding the remainder. The spouse can live in the house for life, and the children own it afterward. That is true even if the will tried to leave the house to someone else. (If the couple owned the home as tenants by the entirety, the surviving spouse simply owns it outright and this rule does not come into play.)
Here is how that plays out. A Stuart homeowner remarries later in life, and his will leaves the house for his two daughters from his first marriage. He dies, and his second wife is still living there. Unless she signed a valid waiver, it will not work the way he intended: she holds a life estate, and his daughters must wait. Nobody did anything wrong. The law simply overrode the plan.
The spouse has a second option. Instead of the life estate, the spouse may elect to take a one-half interest in the home as a tenant in common, with the descendants sharing the other half. The deadline is short: the election must be made within six months of death by recording a notice in the county's official records, and once made, it cannot be undone. Six months goes by quickly for a grieving spouse, so this is a decision to make early and with advice.
If there is a minor child. Generally, an owner who leaves a minor child but no spouse may not leave the Homestead to anyone other than the minor child. A will that tries to do otherwise can be set aside as to the house.
If there is no spouse and no minor child. The owner can leave the Homestead to anyone, and the will or trust controls. The creditor protection may still pass to the heirs, which is often the most valuable feature of Homestead status in these cases.
A revocable living trust doesn't get around these restrictions. Under Section 732.4015, Florida Statutes, a home held in the owner's revocable trust, is treated the same as one held in the owner's own name.
The House Usually Isn't Administered Like Other Assets
In a typical Florida probate, the personal representative gathers assets, pays debts, and distributes what remains. Protected Homestead works differently. In many cases, title passes directly to the heirs or beneficiaries at the moment of death, and the personal representative has only limited authority over the house, mainly to secure and preserve it.
The family still needs the court, though. Title companies and buyers want proof that the house is protected Homestead and who owns it now, and that proof usually comes from a court order determining Homestead status, entered as part of the probate. Skip it, and the sale tends to stall at the title search.
What This Means When the Family Wants to Sell
Most Homestead sales run into a version of the following.
The heirs sign the deed, not just the personal representative. Because title has passed to the heirs, every person who now owns an interest typically must sign. A sibling who disagrees with the price, or simply does not respond, can hold up the closing.
A surviving spouse's life estate changes the math. A house subject to a life estate can still be sold, but the spouse and the remainder owners generally must agree, and the proceeds must be divided according to the value of each interest.
Living out of state is not a problem. Out-of-state heirs can inherit and sell a Florida Homestead, and Florida counsel can handle most of the paperwork remotely. The firm's family guide, First 10 Steps After a Death in Florida, covers what to do in the first few weeks.
Carrying costs keep running. The mortgage, insurance, HOA dues, and property taxes still need to be paid while the estate is open. The Homestead tax exemption typically will not carry over to the heirs, so the following year's tax bill may be noticeably higher. A vacant house may also require a different insurance policy.
Common Mistakes Families Make
- Assuming the will controls the house, then discovering at the title search that it doesn't
- Missing the surviving spouse's six-month election deadline
- Listing the house for sale before anyone has confirmed Homestead status or who has authority to sign
- Using estate funds to pay Homestead expenses without considering how those costs should be allocated among the owners
- Treating the house as available to pay the decedent's debts when it may be protected
For Homeowners Still Planning
Most of this can be managed in advance. Married couples can sign Homestead waivers, update deeds, or structure trusts so the surviving spouse and children are not locked into a life estate they did not want. Owners with no spouse or minor children can ensure their plan takes full advantage of creditor protection. Homestead planning belongs in any well-built Florida estate plan.
How Beacon Legacy Law™ Can Help
Beacon Legacy Law™ handles probate and trust administration throughout Florida, including for out-of-state families who need someone on the ground. The firm's probate attorneys can determine whether the home is protected Homestead, obtain the court order title companies require, advise a surviving spouse on the election, and coordinate a sale with the heirs, wherever they live.
To learn more, read about the firm's Probate and Trust Administration services, download the free guide Top 5 Probate Pitfalls, or review the family guide First 10 Steps After a Death in Florida. Families with smaller estates may also want to read about Florida's new $150,000 summary administration limit.
To schedule a complimentary Discovery Call, call (772) 324-9050 or contact the firm online.
