Florida homestead, untangled

The homestead rules for a living owner

Every situation Florida law provides for, stated generally and cited so you can read the law yourself. Which situation describes your home is for you to read — and, where it turns on judgment, for a licensed Florida attorney of your choosing.

What counts as a Florida homesteadFla. Stat. § 222.17

A homestead is the permanent residence of a Florida resident — the home the owner actually lives in, up to the acreage the constitution sets. A second home, a rental, or property the owner does not live in is not a homestead. Three distinct protections attach while the owner lives: the property-tax exemption and assessment cap, protection from forced sale by most creditors, and the restrictions on devise and alienation when a spouse or minor child survives.

When the owner is survived by a spouse or a minor childFla. Stat. § 732.4015

The constitution restricts the devise of a homestead. With a surviving minor child, the homestead may not be devised at all, whatever a will or trust says. With a surviving spouse and no minor child, it may be devised only to that spouse, and only outright, in fee simple.

When a devise is not permittedFla. Stat. § 732.401

The homestead descends by law: a life estate to the surviving spouse, with a vested remainder to the owner's descendants living at the owner's death. In place of the life estate, the surviving spouse may elect, within the time the statute sets, to take an undivided one-half interest as a tenant in common with the descendants. With no surviving spouse, the homestead descends to the descendants.

A devise in trust for a spouseFla. Stat. § 732.4015

The statute permits a homestead devise to the surviving spouse. Florida courts have treated a devise of the homestead in trust for the spouse as something other than a devise to the spouse, so the outright-versus-in-trust distinction decides whether such a devise is one the statute permits.

A spouse's written waiverFla. Stat. § 732.702

A spouse may waive homestead rights, before or after the marriage, in a written agreement signed with the formalities the statute sets; a waiver signed after the marriage requires fair disclosure of the other spouse's estate. With a valid waiver the devise restriction that protects the waiving spouse does not apply.

When no spouse and no minor child survivesFla. Stat. § 732.4015

The devise restrictions do not apply. The homestead may be devised freely by will or trust, and if there is no will it passes by intestate succession like other property.

A home held by spouses with survivorshipFla. Stat. § 689.15

Property spouses hold as tenants by the entireties, or jointly with an express right of survivorship, vests in the surviving spouse at the first death by operation of law; a will or trust does not control it. At the second death the survivor's homestead passes under the rules above.

A home held jointly with someone other than a spouseFla. Stat. § 689.15

Florida presumes a tenancy in common. A joint tenancy passes to the surviving co-owner only when the instrument creating it expressly provides for survivorship. A married owner's conveyance of a homestead requires the joinder of the spouse.

A homestead titled to a revocable trustFla. Stat. § 736.1109Fla. Stat. § 732.4015Fla. Stat. § 732.4017

A homestead transferred to a revocable trust keeps its protected character in the hands of the trust's beneficiaries, and the constitutional devise restrictions apply to the trust's disposition of it when a spouse or minor child survives. An owner's lifetime transfer of a homestead is governed by its own statute.

An enhanced life estate ("Lady Bird") deed

An enhanced life estate deed is a lifetime conveyance that reserves to the owner a life estate with the power to sell, mortgage, or convey without the remainder beneficiaries' consent; the remainder vests at the owner's death outside probate. The form rests on Florida title practice rather than a single statute, and a married owner's spouse must join a conveyance of the homestead.

The homestead property-tax exemption

The exemption and the assessment cap that comes with it are applied for with the county property appraiser by the annual filing deadline. They attach to the owner's own application and do not pass to heirs automatically; a new owner applies anew.

Creditors

The constitution exempts a homestead from forced sale by creditors, with exceptions for taxes and assessments, obligations contracted for its purchase, improvement, or repair, and labor performed on it. The exemption inures to the surviving spouse or heirs.