Introduction
Florida homestead laws protect families but also impose strict limits on inheritance. If you are married and own a homestead, you cannot leave it to just anyone in your will. These rules affect every couple, whether you are in a first marriage, a blended family, or have children from prior relationships.
What Is a Homestead in Florida?
Homestead is the home you live in as your primary residence. You can only have one homestead in Florida.
Under the Florida Constitution (Art. X, §4), homestead property has three protections:
- Restriction on forced sale by most creditors
- Tax exemption for your primary residence
- Restriction on how the property is inherited when you die
Homestead restrictions when you die apply automatically. Even if you want to leave the property to someone else in your will, the Constitution may block that transfer.
Why Homestead Overrides Your Will
If you are married, you are restricted from leaving your homestead property to anyone except your spouse. This applies even if:
- It’s not your first marriage
- You and your spouse have no children together
- Either spouse has children outside the marriage
Married couples can waive this right in a prenuptial or postnuptial agreement.
Joint Ownership vs. Sole Ownership
Joint Ownership: If you own your homestead jointly with your spouse, and you pass away, your spouse inherits automatically as the surviving joint owner.
Sole Ownership: If you own your homestead property in your name only, your surviving spouse does not inherit the entire property outright. Instead:
- The spouse receives a life estate (the right to live in the property for life).
- When the spouse dies, the property passes to your children (from inside or outside the marriage).
- The spouse may instead elect to take a 50% ownership interest in the property and share ownership with your children. This election must be filed within six months of death.
Common Inheritance Scenarios
|
Situation |
What Happens |
|
Surviving spouse only (no adult children or minor children) |
Spouse inherits the entire homestead |
|
Surviving spouse + adult children or minor children |
Spouse receives life estate, or elects 50% ownership within six months; children inherit remainder |
|
No spouse or children |
Property passes to other descendants, then parents, siblings, or extended relatives |
Creditor Protection and Probate
- Homestead is protected from most creditors, except for mortgages, property taxes, and mechanics’ liens.
- Homestead does not pass through the probate estate, but a court proceeding is required to confirm status and transfer title.
Tax Benefits of Homestead
- Up to $50,000 property tax exemption on your primary residence
- Save Our Homes cap: annual increase in assessed value limited by inflation (CPI)
- Portability: you may transfer exemption to a new homestead
Estate Planning Considerations for Married Couples
Homestead restrictions often take families by surprise. Planning ahead avoids disputes and protects your spouse and children.
Planning options include:
- Creating a revocable trust to direct inheritance
- Signing a marital waiver of homestead rights
- Coordinating ownership structure (joint vs. sole)
FAQs
- What qualifies as a homestead in Florida?
A primary residence you own and occupy with intent to remain. - Does homestead restriction override a will?
Yes, if you have a surviving spouse or minor children. - Who inherits if there is a surviving spouse only?
The surviving spouse inherits the full property. - What if there are minor children?
The spouse receives a life estate or may elect 50% ownership; the children inherit the remainder. - Can the surviving spouse take 50% instead of a life estate?
Yes, but the election must be made within six months of death. - Is the homestead protected from creditors after death?
Yes, with exceptions for mortgages, taxes, and mechanics’ liens. - Does the homestead go through probate?
It does not form part of the probate estate, but a court proceeding is required to confirm and transfer title. - What are the tax benefits of Florida homestead?
Property tax exemption, Save Our Homes cap, and portability. - Can spouses waive homestead rights?
Yes, through a prenuptial or postnuptial agreement. - How can couples plan for homestead inheritance?
By using trusts, marital waivers, and careful title planning.
Avoiding Surprise: Secure Your Family’s Future with Estate Planning
As you can imagine, this can be really problematic and take people by surprise. Families can be taken off guard after the death of a loved one when they discover that the property is not passing to them in the way they thought it would.
Homesteading in Florida can be very tricky, so married couples should work with an experienced estate planning attorney to ensure they are properly advised and informed about their primary residence.
Talk to Our Fort Lauderdale Estate Planning Attorneys
Florida’s homestead laws are complex. Avoid confusion and make sure your family is protected. The estate planning attorneys at SJF Law Group create customized plans to secure your home and preserve your intentions.
We serve clients in Plantation, Fort Lauderdale, Boca Raton, West Palm Beach, and Miami. We offer both in-person and virtual appointments.
Ready to secure your family’s future? Our probate and estate lawyers are here to help. Contact SJF Law Group today for a consultation! Call us at 954-580-3690 or fill out our convenient contact form below. We take pride in prompt responses and look forward to assisting you.