Florida uses the word "homestead" for three different ideas. Mixing them is how families lose a house they thought was already protected.

The first is the property-tax exemption and the Save Our Homes assessment cap. That is a tax statute problem, not this post. The second is the creditor shield in Article X, section 4(a) and (b) of the Florida Constitution: a natural person's homestead is generally exempt from forced sale, with listed exceptions for taxes, purchase-money and improvement obligations, and labor on the realty, and those exemptions "inure to the surviving spouse or heirs of the owner." The third is the restriction on who may receive the homestead at death. That restriction is in Article X, section 4(c), and the Probate Code implements it in sections 732.401 and 732.4015. This post is about the second and third of those ideas, because they are the ones that surprise unmarried partners.

Article X, section 4(c) is short. The homestead "shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner's spouse if there be no minor child." The owner, "joined by the spouse if married," may alienate the homestead by mortgage, sale, or gift, and, if married, may deed it into an estate by the entirety with the spouse.

Read the triggers. The devise restriction is about a surviving **spouse** or a **minor child**. It is not about a partner. An unmarried owner who is not survived by a minor child can generally leave the homestead by will, including to a partner. An unmarried owner who **is** survived by a minor child cannot. Marriage is not the only on-switch. A minor child is enough, by itself, to block a devise of homestead -- including a devise to the person who shared the house.

Section 732.4015 restates the constitutional rule and then expands two words. For this statute, "owner" includes the grantor of a trust described in section 733.707(3) that is in a written instrument in existence at the grantor's death, treated as if the trust interest were owned by the grantor. "Devise" includes a disposition by that trust of the portion that would have been homestead if titled in the grantor's name. Putting the house in a revocable living trust does not let you write around Article X, section 4(c). If a spouse or a minor child survives, the constitutional limit still applies to the trust.

If homestead is not devised as the constitution and the statute allow, section 732.401 supplies the default. Homestead then descends like other intestate property -- **except** that if the decedent is survived by a spouse **and** one or more descendants, the spouse takes a life estate and the descendants take a vested remainder per stirpes. The spouse may elect, within six months of death and during the spouse's lifetime, an undivided one-half as a tenant in common instead of the life estate, by recording a notice in the official records of the county where the property sits. That election is a spouse tool. An unmarried partner cannot make it.

Section 732.401 does not apply to property the decedent already owned as tenancy by the entireties or as joint tenancy with right of survivorship. Tenancy by the entireties is a marital form of co-ownership. Unmarried partners cannot use it. Joint tenancy with right of survivorship can pass title to a co-owner outside probate, but Florida does not presume it. Section 689.15 says that, except for estates by the entirety, a transfer to two or more people creates a tenancy in common unless the instrument **expressly** provides for the right of survivorship. A deed that simply lists two unmarried names, without survivorship language, is the wrong deed if the plan was that the survivor would own the house.

Occupancy is not title. A partner who has lived in a Wilton Manors or Fort Lauderdale house for twenty years, paid the electric bill, and kept the lawn is still a stranger to the homestead if that partner is not on the deed and is not a devisee. If the titled owner dies intestate, sections 732.102 and 732.103 send the property to a legal spouse, then to descendants, then to parents, then to siblings, then to more remote kindred. An unmarried partner is not on that list. Florida does not recognize a new common-law marriage entered into after January 1, 1968 (section 741.211). Years under one roof do not create a spouse, and they do not create an heir. A local domestic-partnership card does not put someone on Florida's heir list.

The 2026 small-estate changes do not fix this. Chapter 2026-57 (CS/HB 1337), effective July 1, 2026, raised the summary-administration cap in section 735.201 to $150,000 of the Florida estate subject to administration, minus property exempt from creditors. Homestead that is exempt from creditors generally does not count toward that cap. The statute still does not name a partner as an heir. Easier probate of a house that belongs to the decedent's siblings is not protection for the person who is sleeping in it.

A will can do some of the work, and it cannot do all of it. If the unmarried owner has no minor child, a valid Florida will can devise the homestead to the partner. The will must be executed with the formalities in section 732.502. If there **is** a minor child, that devise fails as to homestead no matter how clear the will is. If there is a legal spouse -- including a same-sex spouse of a lawful marriage -- the owner generally cannot devise homestead away from that spouse unless there is no minor child and the devise is to the spouse. Same-sex spouses have the same Florida homestead tools as any other married couple: the constitutional devise restriction, the section 732.401 life estate or one-half election, tenancy by the entireties, and joinder on a sale or mortgage. Unmarried partners of any gender have none of those.

A funded revocable trust can hold homestead, but it is a Florida-specific deed-and-language job, not a download. The Florida Bar's consumer pamphlet on revocable trusts warns that homestead in a revocable trust may lose creditor protection, and that the bankruptcy treatment has been described as unsettled. Do not treat a living-trust deed as an asset-protection move. Treat it as a probate-avoidance and management tool that still has to obey Article X, section 4(c).

The surviving partner who is not on title has a planning problem, not a homestead right. The tools that actually move the house are a valid devise (when the constitution allows it), an express joint tenancy with right of survivorship, or a properly funded trust. Occupying the house is none of those.

This article is general information, not advice about a particular title, a particular homestead, or a particular family. The Law Office of Shawn C. Newman, P.A. offers a free consultation in person or by Zoom. Call (954) 563-9160 or visit www.shawnnewman.com. The office is at 710 NE 26th Street, Wilton Manors, Florida 33305, and serves Broward, Palm Beach, and Miami-Dade Counties.