Many people assume that a will settles who gets the house. In Florida, that is not always true. If your home is your Florida homestead, the state constitution decides who may receive it in certain family situations. That rule applies no matter what your will or trust says.

The result surprises families every year. A carefully signed will leaves the house to a partner, a sibling, or the children from a first marriage, and the house ends up going somewhere else. This article explains the rule, what happens when a plan runs into it, and the tools Florida law provides for planning around it.

The basic rule: a spouse or minor child limits who can inherit the home

Florida's constitution says that "the homestead shall not be subject to devise if the owner is survived by spouse or minor child." (Fla. Const. art. X, § 4(c).) "Devise" simply means leaving property to someone in a will or trust. Florida's Probate Code repeats the rule. (Fla. Stat. § 732.4015(1).)

There is one exception. If there is no minor child, you may leave the homestead to your spouse. (Art. X, § 4(c); § 732.4015(1).) A Florida Bar Journal article reads this exception as allowing a gift of full ownership to the spouse. Leaving the spouse something less, such as a life estate in trust with the remainder to your children, may not qualify. (Percopo, 2024.)

Two points are easy to miss:

• The rule looks at who survives you, not at what your will says. A will that was fine when you signed it can fail as to the house if you later marry, or have or adopt a child.
• The rule protects only a spouse and a minor child. An unmarried partner gets no protection under this provision. Neither do stepchildren who were never adopted.

What happens when the will can't control the house

If the house is left to someone the law does not allow, that part of the will fails. The homestead then "shall descend in the same manner as other intestate property," meaning it passes as if you had no will, with a special rule for spouses. (§ 732.401(1).) How it passes depends on who survives you:

• A spouse and descendants (children, grandchildren, and so on): the spouse receives a life estate, meaning the right to use the home for the rest of the spouse's life. Your descendants receive the remainder, divided per stirpes (by family branch). (§ 732.401(1).)
• A spouse but no descendants: the spouse generally receives the home. (§ 732.102(1).)
• A minor child but no spouse: the home passes to all of your descendants, per stirpes, including adult children, not only the minor child. (§ 732.103(1).)

Your spouse's own children are not your descendants unless you adopted them, so they do not share in the remainder. (§§ 731.201(9), 732.401(1).)

The spouse's six-month choice

Instead of the life estate, a surviving spouse may elect to take an undivided one-half interest in the home as a tenant in common. The other half goes to your descendants. (§ 732.401(2).) A few details matter a great deal:

• The deadline is short. The election must be made within six months after the death and while the spouse is alive. (§ 732.401(2)(b).)
• It is permanent. "Once made, the election is irrevocable." (§ 732.401(2)(d).)
• If the spouse can't act personally, an agent under a power of attorney or a guardian of the property may make the election only with court approval. The court must find the election is in the spouse's best interests. If that petition is filed within the six months, the deadline is extended until at least 30 days after the court's order. (§ 732.401(2)(a), (c).)
• It is made by recording a notice. The spouse files a sworn notice of election, with the property's legal description, in the official records of the county where the home is located. (§ 732.401(2)(e).)

Only the spouse has this option. As one recent Florida Bar Journal article notes, "there is no corresponding option for the descendants of the deceased spouse." (Baskies & Arencibia, 2026.)

Who pays for the house

Until an election is made, expenses of ownership are divided between the spouse, as life tenant, and the descendants, as remaindermen, under Florida's principal and income law (chapter 738). After an election, the co-owners share expenses in proportion to their shares, starting on the date the election is recorded. (§ 732.401(3).) In Aronson v. Aronson, the court held that a surviving spouse who took a life estate was responsible for the property's expenses. (81 So. 3d 515, 519 (Fla. 3d DCA 2012).)

Choosing between a life estate and a half interest involves trade-offs. The life estate gives the spouse a place to live but also the carrying costs. A half interest can be sold or left by will, but co-owners can disagree, and a co-owner can ask a court to divide or sell the property. These choices are best weighed with a lawyer well before the six months run out.

A revocable living trust does not get around the rule

Many people believe that putting the house in a revocable living trust takes it out of these rules. It does not. Florida law treats the person who created a revocable trust as the "owner" of the home, and treats the trust's instructions for the home as a "devise." (§ 732.4015(2)(a)–(b).)

Florida courts have applied the rule this way. In Aronson, a condominium was held in the husband's revocable trust, which gave his widow a life interest with the remainder to his sons. The court held that the constitutional rule controlled and the home passed under § 732.401(1), outside the trust. The court explained that the legislature had made clear that the provision applies "equally to property held by a revocable trust as to testamentary bequests." (81 So. 3d at 519.) Earlier, in Engelke v. Estate of Engelke, the court likewise treated a revocable trust's disposition of a home as a devise under § 732.4015. (921 So. 2d 693, 696–97 (Fla. 4th DCA 2006).)

A different statute does matter here. A transfer of a homestead interest during your lifetime, including a transfer into a trust, is not a devise if you do not keep the power to revoke it or take the property back. (§ 732.4017(1).) This approach, which typically uses an irrevocable trust, has been discussed in the Florida Bar Journal. (Percopo, 2024.) Giving up control of your home is a significant step, though, and it is not right for everyone.

Spouses can agree to waive these rights

Florida allows spouses to give up homestead rights in writing, before or after the marriage. This is often important in second marriages, where each spouse wants the home to go to his or her own children, and the other spouse agrees.

A written agreement under § 732.702

• A spouse may waive homestead rights, along with other rights such as the elective share, by a written contract, agreement, or waiver. The waiver must be signed in the presence of two subscribing witnesses. (§ 732.702(1).)
• If the agreement is signed after the marriage, each spouse must make a fair disclosure of his or her estate to the other. No disclosure is required for an agreement signed before the marriage. (§ 732.702(2).)
• Unless the document says otherwise, a waiver of "all rights" includes homestead rights. (§ 732.702(1).)

In Engelke, the wife had waived her homestead rights in a prenuptial agreement and there was no minor child, so the devise restriction did not apply to the home held in the husband's trust. (921 So. 2d at 696–97.)

A waiver in a deed under § 732.7025

Since 2018, a spouse can also waive the devise restriction by signing a deed that contains specific language set out in the statute, or substantially similar language. (§ 732.7025(1).) This type of waiver is narrow. It covers only the restriction on leaving the home by will or trust. By statute, it does not waive the home's protection from the owner's creditors, and it does not remove the requirement that the spouse join in any sale, mortgage, or deed of the home. (§ 732.7025(2).) It also does not waive other spousal rights, such as the elective share; those require a written agreement under § 732.702. (Goethe & Baskies, 2019.)

Because waivers give up important rights, both spouses should understand exactly what they are signing. A Florida Bar Journal article suggests it is prudent to make full and fair disclosure even for a deed waiver. (Percopo, 2024.)

Unmarried partners: no automatic protection, but more freedom to plan

For unmarried couples, the homestead rules cut both ways.

The risk. Florida law gives an unmarried partner no inheritance rights at all. If you die without a will and without a spouse, your estate passes to your descendants, then your parents, then your brothers and sisters and their descendants, and then more distant relatives. (§ 732.103.) If no qualifying relative survives you, the property goes to the State of Florida. (§ 732.107(1).) A partner of many years is not on that list.

The opportunity. The devise restriction applies only if you are survived by a spouse or a minor child. If neither survives you, you may leave your homestead to anyone you choose, including your partner, by will or trust. (Art. X, § 4(c).) The key is to actually put that plan in writing.

Keep in mind that the picture can change. If you later marry, or have or adopt a child, the restriction may apply to the home again. That is one reason to review your plan after any major life event.

These homestead rules apply to married couples, and Florida's statutes use the word "spouse" without qualification.

Leaving your partner an interest in the house through a revocable trust

Many unmarried couples use a revocable living trust to plan for the home. If you are not survived by a spouse or a minor child, your trust can leave your partner the house, or an interest in it, and that gift is valid. (Art. X, § 4(c); § 732.4015.) If a spouse or minor child does survive you, the trust's gift of the house to your partner is treated as a prohibited devise and fails. (§ 732.4015(2)(b).) That test is applied at your death, so a later marriage or a new child can undo the plan.

Ways to structure the gift

• The house outright. The trust gives the home to your partner after your death. This is the simplest option. Your partner owns the home and can live in it, sell it, or leave it to someone else.
• A lifetime interest in trust. The trust keeps title and gives your partner the right to live in the home for the rest of his or her life. Florida's homestead tax exemption statute treats an instrument granting "a beneficial interest for life" as equitable title to the property. (§ 196.041(2).) Note that this provision refers to an interest held for life.
• A remainder to others. After your partner's lifetime interest ends, the home can pass to your children, other relatives, or anyone else you name.
• A clear expense clause. If the trust keeps the home, it should spell out who pays property taxes, insurance, association dues, ordinary repairs, and major improvements, and whether the trust sets aside a reserve. Writing this down can help avoid disputes between your partner and the people who will inherit the home later.

Property taxes after your death

Your homestead exemption and the Save Our Homes cap on assessment increases are tied to you. Under Florida law, a home is reassessed "at just value as of January 1 of the year following a change of ownership." (§ 193.155(3)(a).) A transfer to a surviving spouse is an exception, but a transfer to a partner normally is not. A transfer at death is also not treated as a change of ownership if the person receiving it is a permanent resident who is "legally or naturally dependent upon the owner." (§ 193.155(3)(a)4.) Otherwise, the home will generally be reassessed at full market value on the January 1 after your death.

Your partner may then be able to claim a new homestead exemption. A partner who receives the home outright and makes it his or her permanent residence may apply, as may a partner who holds a beneficial interest for life in trust. (§§ 196.031(1)(a), 196.041(2).) The application is generally due by March 1. (§ 196.011(1)(a).) A new exemption starts a new Save Our Homes base at the home's market value at that time.

Creditor protection may not follow the house

Florida homestead is generally protected from the owner's creditors, and that protection "shall inure to the surviving spouse or heirs of the owner." (Art. X, § 4(b).) The Florida Supreme Court has held that this protection passes "to any family member within the class of persons categorized in our intestacy statute." (Snyder v. Davis, 699 So. 2d 999, 1005 (Fla. 1997); § 732.103.) An unmarried partner is not on that list. As a result, when the home goes to a partner, it likely does not keep its protection from claims against your estate. Holding the home in a revocable trust does not change who counts as an heir.

None of this means a partner can't receive the home. It means the plan should be designed with these trade-offs in mind, and reviewed with an attorney.

How the deed itself can help

How you hold title can matter as much as what your will says. Property held as tenants by the entirety or as joint tenants with right of survivorship is not subject to the homestead descent rules in § 732.401. (§ 732.401(5).)

• Tenancy by the entirety (married couples only). The constitution allows a married owner to deed the homestead into an estate by the entirety with the spouse. (Art. X, § 4(c).) Florida law sets out how a spouse holding title can create this kind of ownership. (§ 689.11(1).) As one Florida Bar Journal article puts it, "TBE remains the one form of direct ownership that is available exclusively to married couples." (Percopo, 2025.)
• Joint tenancy with right of survivorship (available to anyone). In Florida, a deed to two or more people creates a tenancy in common, with no survivorship, "unless the instrument creating the estate shall expressly provide for the right of survivorship." (§ 689.15.) For unmarried partners, the exact wording of the deed matters.

Adding someone to the deed to your home is a lifetime transfer. It gives that person a present ownership interest in your home, and it can have legal and financial consequences beyond inheritance. Talk with an attorney before you sign a new deed.

A short homestead checklist

1. Confirm whether your Florida home is your homestead and how it is titled today.
2. Review your will and trust after any marriage, divorce, birth, or adoption.
3. If you are married, decide together whether either spouse should waive homestead rights, and use the proper form of waiver.
4. If you have a revocable trust, make sure its homestead provisions fit your family situation.
5. If you are not married and want your partner to receive the home, put that plan in writing in a will, a trust, or a properly worded deed.
6. If your trust leaves your partner the home or a lifetime interest in it, make sure it includes a clear expense clause, and understand how property taxes and creditor protection may change after your death.
7. If you are a surviving spouse, get advice early. The six-month election deadline passes quickly.

We can help you plan

Homestead rules are one of the most common reasons a Florida estate plan does not work the way the family expected. The Law Office of Shawn C. Newman, P.A. helps individuals and couples throughout Broward, Palm Beach, and Miami-Dade counties review their wills, trusts, and deeds so their homes go where they intend. Initial consultations are free and can be held at our office at 710 NE 26th St, Wilton Manors, FL 33305, or by Zoom.

Call us at (954) 563-9160 to schedule a time to talk. You can also learn more at www.shawnnewman.com.

Give us a call. We can help.

Disclaimer: This article is for general educational purposes only and is not legal advice. Reading it does not create an attorney-client relationship with the Law Office of Shawn C. Newman, P.A. Laws change, and every situation is different. Please consult an attorney about your specific circumstances before acting on any information here.