Florida homestead law, in Article X, Section 4 of the Florida Constitution, protects a primary residence from most creditors but limits how you can leave it by will if you are survived by a spouse or minor child. If the rules are not followed, section 732.401 decides who receives the home, often a life estate for the spouse.
Florida homestead law comes from the Florida Constitution, in Article X, Section 4. It does two very different things. It protects your primary residence from most creditors, and it limits how you can leave that home when you die if you have a spouse or minor child. Both rules can work in your favor, but only if your estate plan accounts for them.
Homestead creditor protection
Under Article X, Section 4(a), a homestead owned by a natural person is exempt from forced sale under court process, and court judgments generally cannot become liens on it. For many families, this means the home is shielded from the kinds of claims that could reach other assets.
The protection has limits that are written into the Constitution itself:
- Exceptions. It does not protect against property taxes and assessments, debts for the purchase, improvement or repair of the home, or obligations for labor performed on the property. A mortgage you took out to buy the home, for example, can still be enforced.
- Size limits. Inside a city or town, protection covers up to one half acre of contiguous land. Outside a municipality, it covers up to 160 contiguous acres.
- Residence. The protection is for the residence of the owner or the owner's family, which is why we confirm how and by whom the home is used.
Homestead status for creditor protection is separate from the homestead property tax exemption. The tax exemption is a separate application you make with your county property appraiser, and qualifying for one does not decide the other.
Limits on leaving your home by will
This is the rule that surprises people most. Under section 732.4015 of the Florida Statutes, if you are survived by a spouse or a minor child, you may not leave your homestead by will to whomever you choose. The main exception is that, if there is no minor child, you may leave the homestead to your surviving spouse.
These restrictions often catch families off guard in situations such as:
- A second marriage where you want the home to go to children from a first marriage.
- A will that leaves the home to one child when there is also a minor child.
- A home placed in a revocable trust without considering how the homestead rules apply.
- A will signed in another state before moving to Florida.
What happens when the rules are not followed
If the homestead is not left in a way the law allows, section 732.401 decides who receives it. When the owner leaves a spouse and descendants, the spouse receives a life estate, the right to live in and use the home for life, and the descendants receive the home after the spouse's death. Instead of the life estate, the spouse may elect to take an undivided one half interest as a tenant in common, with the other half going to the descendants. That election generally must be made within six months after the death and cannot be undone.
The result can leave a surviving spouse and stepchildren as co owners of the same house, which is rarely what anyone intended. A spouse may waive homestead rights by a written agreement signed before two witnesses under section 732.702, with fair disclosure required if the agreement is signed after marriage. Planning ahead, rather than leaving it to be sorted out in Florida probate, is the most reliable way to keep the outcome in your hands.
Where lady bird deeds fit
Florida recognizes the enhanced life estate deed, commonly called a lady bird deed. In general terms, it is a deed in which you keep the right to live in and control your home for the rest of your life, while naming the people who will receive it after you die.
A lady bird deed can be a useful tool, but it is not right for everyone. Our guide to how lady bird deeds work explains the details. Because you keep control, the deed must still be coordinated with the homestead restrictions above when you are married or have a minor child, and with your will, your trust and how you hold title today. We explain whether it fits your plan before you record anything.
Common homestead planning questions
- Should my home go into my trust? It can, but the homestead rules still matter. We review the deed and trust together.
- Is a lady bird deed better than a trust? They solve different problems. The right answer depends on your family and your other assets.
- What if I remarry? A new marriage can change how the homestead rules apply. Review your plan after any change in your family, and consider whether a written waiver is appropriate.
How we help
We start by reviewing how your home is titled and who is in your family, then explain how Florida homestead law applies. From there, we prepare the deed, will or trust documents your plan needs. If your question is about a purchase, sale or title issue, our real estate law team can help as well.
