Last updated June 27, 2026 · Reviewed by Neil Alan Milestone, The Florida Bar No. 309966
Handling a Florida Trust with a homestead in it? A free role check points you to the right next step.
Start the free role checkOne word, three protections
Florida homestead means three different things: a constitutional shield from most creditors (Art. X, §4, Fla. Const.), restrictions on who may inherit the home when a spouse or minor child survives, and property-tax benefits like the homestead exemption and the Save Our Homes cap. Each follows its own rules — and after a death, all three can matter at once.
Who gets the home — §732.401
When homestead is not (or cannot be) validly devised, Florida Statute §732.401 decides:
- Spouse and descendants both survive: the spouse takes a life estate in the homestead, with a vested remainder to the descendants per stirpes.
- Instead of the life estate, the spouse may elect an undivided one-half interest as tenant in common. The statute is strict on timing: the election must be made within 6 months after the decedent's death and during the surviving spouse's lifetime.
- A spouse but no descendants (or descendants but no spouse): the homestead descends like other intestate property — typically to the spouse outright, or to the descendants.
When the home can — and can't — be left by will: §732.4015
Florida restricts devising the homestead: it "shall not be subject to devise if the owner is survived by a spouse or a minor child or minor children, except that the homestead may be devised to the owner's spouse if there is no minor child or minor children." A devise that violates the rule fails, and the §732.401 descent rules above take over.
Named in a revocable Trust? The rules still apply
§732.4015(2) extends the restriction to Trusts: "owner" includes the grantor of a revocable Trust and "devise" includes a trust disposition of the home. So deeding the homestead into a revocable living Trust does not unlock the ability to leave it away from a surviving spouse or minor child — and a Trustee who distributes or sells the home without checking the descent rules can cloud the title. In a firm-supervised matter, TrusteeClear routes homestead questions to the attorney before anything moves.
Creditors and the inherited homestead
The constitutional exemption generally inures to the surviving spouse or heirs — meaning most of the decedent's ordinary creditors cannot force a sale of the protected homestead after death. Obligations tied to the home itself, like a mortgage, property taxes, and construction or association liens, still apply. Whether a particular recipient and property qualify is fact-specific attorney territory.
Property taxes: exemption and the Save Our Homes cap
The decedent's homestead tax exemption and assessment cap do not simply continue. A surviving spouse or heir who lives in the home generally must qualify and file for the exemption in their own right — and moving or selling triggers its own rules. The county property appraiser's office and a Florida attorney can confirm what applies.
What should happen next?
Homestead outcomes turn on facts: who survived, how the deed reads, whether minors are involved, and the 6-month election clock. This page is general information, not legal advice. A free role check points you to the right next step, and a Florida attorney can confirm how the homestead passes in your situation.
Related reading
General information about Florida law, not legal advice.
Frequently asked questions
- Can a Florida homestead be left by will?
- Only in limited cases. Under §732.4015, the homestead cannot be devised if the owner is survived by a spouse or a minor child — except that it may be devised to the spouse when there is no minor child. An invalid devise falls back to the §732.401 descent rules. General information, not legal advice.
- What does the surviving spouse get in a Florida homestead?
- When the owner is also survived by descendants, the spouse generally takes a life estate with a vested remainder to the descendants — or may instead elect an undivided one-half interest as tenant in common. The statute requires that the election be made within 6 months after the decedent's death and during the spouse's lifetime (§732.401(2)).
- Does putting the homestead in a revocable trust avoid these rules?
- Generally no. §732.4015(2) defines "owner" to include the grantor of a revocable trust and "devise" to include trust dispositions, so the same restrictions apply to homestead held in a revocable living trust.
- Can creditors take a Florida homestead after the owner dies?
- Florida's constitutional exemption (Art. X, §4) generally inures to the surviving spouse or heirs, so ordinary creditors of the decedent usually cannot force its sale — though mortgages, property taxes, and liens on the home itself still apply. Fact-specific questions belong with a Florida attorney.
General information about Florida law, not legal advice.