Can you leave your Florida home to anyone you choose?
For many people, estate planning begins with a simple thought: the will controls the house. A clearly written will or trust can still fail to do that.
If you own a Florida homestead and you are survived by a spouse or a minor child, you usually cannot leave that home to anyone you choose. Florida’s constitution and probate code restrict how a homestead can be “devised” (given at death) in those situations.
There is one important exception: if you leave a surviving spouse but no minor child, you may leave the homestead to your spouse. If no spouse and no minor child survive you, the devise restriction generally does not apply, and you have much more freedom.
Below is what that means in plain English.
What “Florida homestead” means here
“Homestead” is one word that does three different jobs in Florida law. People often blur them together.
- Creditor protection. Florida protects a qualifying primary residence from most creditors during life and, in many cases, after death.
- Property tax benefits. The homestead exemption and the Save Our Homes cap reduce and limit property taxes on a primary residence. That is handled by the county property appraiser, not by your will.
- Restrictions on devise. Florida limits who can receive a homestead at the owner’s death when certain family members survive.
This article is about the third one: devise at death. A few definitions help.
- Devise means a gift of property made in a will (or, in many cases, through a trust that works like a will).
- Homestead, for this purpose, generally means the Florida residence owned and lived in by a person as a permanent home, within the size limits set by the constitution.
- Personal representative is the person the court appoints to administer an estate, which many people know as the executor.
A tax exemption from the property appraiser does not by itself decide whether the devise restriction applies. The questions overlap, but they are not the same.
The constitutional and statutory restriction
The restriction starts in the Florida Constitution. Article X, Section 4(c) provides, in substance, that homestead is not subject to devise if the owner is survived by a spouse or minor child, except that the homestead may be devised to the owner’s spouse if there is no minor child.
The Florida Probate Code carries that rule forward in Fla. Stat. § 732.4015. The statute also defines key terms, including who counts as an “owner” and what counts as a “devise,” in a way that reaches certain trust arrangements, not just wills.
In plain English:
- Spouse survives, minor child survives: the homestead generally cannot be freely devised, not even entirely to the spouse.
- Spouse survives, no minor child: the homestead can be devised to the spouse. A devise to anyone else (for example, adult children from a prior marriage) runs into the restriction.
- Minor child survives, no spouse: the homestead generally cannot be freely devised.
- No spouse and no minor child survive: the devise restriction generally does not apply, though other homestead rules (including how creditor protection passes to heirs) may still matter.
A “minor child” generally means a child under 18 at the owner’s death. Whether the property is homestead at all can itself be a fact-specific question.
One more clarification: Florida’s rules for a valid will, such as signing in the presence of two witnesses (Fla. Stat. § 732.502), are separate from the homestead rules. A will can be perfectly valid and still be ineffective as to the house.
What happens if the will or trust tries to do something the law forbids
If a homestead is not devised in a way the law permits, the specific gift of the house does not control. Instead, the property passes under Fla. Stat. § 732.401.
At a high level, where the owner is survived by a spouse and descendants, that statute generally provides:
- The surviving spouse receives a life estate, meaning the right to use the home for the rest of his or her life, with the remainder passing to the owner’s descendants; or
- The surviving spouse may instead elect to take an undivided one-half interest in the home as a tenant in common, with the other half passing to the descendants. The election has a deadline and formal requirements.
Either path raises practical questions: who pays taxes, insurance, and repairs; who lives there; and what happens if co-owners disagree about a sale. That is why this issue deserves attention before it becomes a probate problem.
For more on what administration involves after a death, see our probate and trust administration page.
Trusts do not automatically “fix” the restriction
A common assumption is that putting the house in a revocable trust avoids the homestead rules. Generally, it does not.
Section 732.4015 treats certain dispositions of homestead through a revocable trust as a devise for purposes of the restriction. In other words, what a will cannot do, a revocable trust usually cannot do either.
That does not make a revocable trust a bad place for a homestead. There can be good reasons to use one. Titling questions, and what happens when a trust provision conflicts with homestead law, are covered in our related article, Can You Put Your Florida Homestead in a Revocable Trust? This article stays focused on the underlying devise restriction itself.
Common family situations
These examples are hypothetical and simplified. Real outcomes depend on the facts and the documents.
Remarriage and blended families
A homeowner remarries and has adult children from a first marriage. The will leaves the house to those children.
If the spouse survives and there is no minor child, the devise to the children conflicts with the restriction. The home may pass under the statutory scheme instead, leaving a spouse and stepchildren sharing interests in the same property.
Minor children
A parent of young children leaves the house in trust for the children’s benefit, or to a sibling to “hold for the kids.”
If a minor child survives, the restriction applies, and the planned gift may not work as written.
Unmarried owner with only adult children
If a homeowner has no spouse and no minor child at death, the devise restriction generally does not apply. That owner typically has more flexibility in deciding who receives the home.
But a future marriage or the birth of a child can change the analysis.
Tools people ask about (overview only)
There are lawful planning tools that can affect how homestead passes. They each carry formal requirements and real trade-offs, so this is an overview, not instructions.
- Spousal waivers. Under Fla. Stat. § 732.702, a spouse may waive certain rights, including homestead rights, through a properly executed agreement. Prenuptial and postnuptial agreements are treated differently, including disclosure requirements after marriage. A waiver that is not properly prepared may not hold up.
- Titling during life. How the home is titled (for example, joint ownership with a spouse) can change what passes at death. Changing title has its own consequences and should be considered carefully.
- Irrevocable homestead trusts and certain lifetime transfers. Fla. Stat. § 732.4017 addresses certain lifetime transfers of homestead with retained interests and when they are not treated as a devise. These arrangements are technical and usually irrevocable.
Each should be reviewed with counsel against your full family picture. Small drafting errors here can matter a great deal.
Homestead vs the rest of the estate plan
The homestead rule is a good illustration of a broader point: a will is a document, and an estate plan is a system.
The deed, the will, any trust, beneficiary designations, marital agreements, and powers of attorney all have to work together. If one piece assumes the house can go anywhere and the law says otherwise, the plan has a gap.
We discuss that broader idea in Is a Will Enough in Florida?, and you can read more about how we approach estate planning.
When to review your plan
Consider a review if any of these apply:
- You have remarried or are planning to marry.
- You have had or adopted a child, or you have minor children.
- You moved to Florida with a will or trust prepared in another state.
- You bought or sold a primary residence, or changed which property you live in.
- You own both a Florida residence and a second home, and are not sure which one, if either, is homestead.
Frequently asked questions
Can I leave my Florida home to my children if I remarry? If your spouse survives you and you have no minor child, a devise of the homestead to anyone other than your spouse generally conflicts with Florida’s restriction.
Does a revocable trust get around Florida’s homestead devise restriction? Generally no. Florida law treats certain revocable trust dispositions of homestead as a devise, so the same restriction usually applies.
What happens if my will leaves the homestead in a way the law does not allow? The gift of the house generally does not control. The home usually passes under Fla. Stat. § 732.401, which generally gives a surviving spouse a life estate (or an elected one-half interest) and the descendants the remainder.
Does the restriction apply if I am single with only adult children? Generally no. If no spouse and no minor child survive you, the devise restriction generally does not apply.
Is this the same as the homestead property tax exemption? No. The tax exemption and Save Our Homes benefit are property tax matters. The devise restriction is about who can receive the home at death.
Talk through your situation
If you own a Florida homestead and have remarried, have minor children, or are not sure your documents do what you think, a careful review is worthwhile. We cannot promise a particular deed, trust, or result, but we can help you understand how the rules apply to your family.
The Law Offices of Brian Giaquinto serves families in Volusia and Flagler counties from our Daytona Beach office, and meets clients on the Space Coast (Melbourne, Suntree, and Viera) by appointment. To schedule a free initial consultation, call (386) 244-9633, email info@giaquintolegal.com, or use our contact page. You can find more articles in our Legal Insights library.
This article is for general educational purposes and is not legal advice. Reading it does not create an attorney-client relationship. Statutes and case law change; consult an attorney about your specific situation.