Florida homestead law gives your primary residence three protections: it lowers your property tax bill, shields the home from most creditors, and — if you’re survived by a spouse or a minor child — restricts how you can leave it in your estate plan. That last protection is the one people miss: it can override what your will or trust says, regardless of your intent. Knowing which rules apply to your situation is the only way to make sure your home actually passes the way you want it to.
The Three Protections, in Full
1. The Homestead Tax Exemption
If the property is your permanent Florida residence and you hold that residency status as of January 1 of the tax year, the homestead exemption can reduce your home’s taxable value by up to $50,000. You apply for it through your county property appraiser’s office.
The Save Our Homes cap: once you have the exemption, Florida also caps how much your home’s assessed value can grow each year for tax purposes — to whichever is lower, 3%, or that year’s Consumer Price Index increase. This protects long-time homeowners from a tax bill that spikes with a hot real estate market.
Portability: If you sell and buy another primary residence in Florida, you can transfer your accumulated Save Our Homes tax savings to the new home through portability, rather than starting over at the new property’s full assessed value.
2. Protection from Creditors
Your homestead generally can’t be forced into sale to satisfy a credit card judgment, a personal injury judgment, a business debt, or a deficiency judgment. That protection has real limits, though — it does not apply to property taxes owed on the home, a mortgage on the property, construction or mechanic’s liens, or HOA assessments. Those can still force a sale.
In probate: when a Florida resident who owned a homestead dies, that property typically passes to their heirs free of most creditor claims in the probate process—one reason homestead is such a valuable asset to plan around.
3. The Restriction on Devise
This protection catches people off guard. The Florida Constitution restricts how you can leave homestead property if you’re survived by a spouse or a minor child — you can’t always leave it to whomever you choose, even in a will or trust.
If a minor child survives you: the homestead generally can’t be devised at all, to anyone, including your spouse. Florida law determines who gets it instead.
If only a spouse survives you (no minor child): the home typically has to go to your spouse unless they’ve formally waived that right. Your spouse then gets a choice: a life estate in the property, or an election to instead take a 50% tenant-in-common interest, with your descendants receiving the remainder interest. If there are no descendants, then the surviving spouse gets 100%.
When this restriction applies: two things have to be true at once — the property is owned individually (not, for example, as tenants by the entirety with a spouse), and you’re survived by a spouse or a minor child.
If the homestead is left improperly — meaning your will or trust tries to override these rules — Florida law simply determines how the property passes anyway, using the same default outcomes described above.
How This Plays Out in Practice
A single parent with minor children: a parent’s will leaves their homestead to their two minor children. When the parent dies while the children are still minors, that devise is invalid. The property passes through probate according to Florida law instead, not according to the will.
A remarried homeowner with adult children: a homeowner remarries, later dies holding the homestead in their name alone, survived by their new spouse and adult children from an earlier marriage. The surviving spouse receives a life estate in the property, or can elect to take a 50% interest instead.
A married couple who own the home jointly: spouses who hold title as tenants by the entirety avoid all of this — the property transfers automatically to the surviving spouse at death, without probate, and the constitutional devise restrictions don’t apply at all.
When to Speak with an Estate Planning Attorney
Homestead law is this complicated precisely because it can override an estate plan you already have, or create an ownership arrangement you never intended — spouse and children as unplanned co-owners, a devise that’s simply invalid. If any of the scenarios above sound like they could apply to your situation, that’s worth a conversation with an estate planning attorney before it becomes a problem your family has to untangle after the fact.
Frequently Asked Questions
How is my homestead titled? It matters more than most homeowners realize. Property owned individually is subject to the devise restrictions above; property owned jointly with a spouse as tenants by the entirety passes automatically to the survivor and isn’t. Check your deed, not just your assumption.
Does my estate plan comply with Florida’s homestead laws? If you’re survived by a spouse or a minor child, the constitutional restriction on devise can override what your will or trust says — regardless of your intent. A plan drafted without accounting for this can fail in exactly the way it wasn’t supposed to.
Would my spouse and children become co-owners of my property? Possibly. If the restriction applies, your spouse may end up with a life estate or a 50% interest, with your children holding the remainder — even if your plan intended something different.
Why does it matter when my estate plan was last reviewed? Homestead rules don’t change often, but your family circumstances do — a remarriage, a new minor child, or a change in how the property is titled can all shift which rules apply to you. A plan that was compliant when written can fall out of compliance without anyone updating it.
About This Article
Written by Samantha Fitzgerald, Esq., Founder & Managing Attorney at SJF Law Group.
Learn more about our estate planning services, or read our related post on what asset protection strategies actually work in Florida.
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