How the Florida Homestead Exemption Affects a Will and Trust

An Introduction

Florida’s homestead protections are among the strongest in the country, and any estate plan that involves a Florida home has to be built around them.

Most homeowners know “homestead” only as the exemption that lowers their property tax bill, but that is just one of three protections. Florida homestead also shields the home from most creditors and, most important for estate planning, restricts who the owner can leave the home to at death. This third protection is the one people tend to overlook, and it can quietly override the terms of an otherwise well-drafted will or trust.

What does the term “homestead” mean in Florida?

In Florida, homestead protections are afforded by Article X, Section 4 of the Florida Constitution, and supplemented by Chapter 732 of the Florida Statutes.

The property-tax exemption and the Save Our Homes assessment cap are found in Article VII. Whereas, the creditor protection and the devise-and-descent restriction are contained in Article X, Section 4.

For estate planning purposes, the operative rules are the devise restriction in Florida Statutes § 732.4015 and the descent rules in § 732.401. Together, these statutes address the question of who gets a homestead property when a Florida resident dies and does their estate plan control.

A will or trust controls only when the decedent/owner is not survived by a spouse or a minor child. If neither exists, the owner may leave the homestead to whomever they choose. However, the moment a surviving spouse or a minor child is involved, the Florida Constitution constrains the owner’s choices of who may inherit a homestead property.

How do these statutes change who may inherit a homestead property in Florida?

To illustrate the effect of these statutes, consider the following two scenarios:

• Decedent passes away with a surviving spouse but no minor child. Under Florida law, a homeowner generally is not permitted to devise their homestead to their children while excluding a surviving spouse, unless the spouse has validly waived their homestead rights. However, a homeowner is permitted to devise the homestead property outright (in fee simple) to their spouse without triggering a statutory default, provided the homeowner is not survived by any minor children. If the devise is invalid, such as a gift to the children alone, the statutory default applies and, under § 732.401, the surviving spouse receives a life estate, with a vested remainder (a future interest in property that is guaranteed to be received by a specific person or entity) to the decedent’s descendants. Florida law has recognized, however, that a life estate can become burdensome for a spouse who is unable to carry the cost of taxes, insurance, and general upkeep. The law gives a spouse an alternative to elect to take a one-half interest in the property as a tenant in common within six months of the death of the decedent. Given that this election has a rigid deadline and must be affirmatively made by the spouse, it often leads to the loss of rights for underrepresented families.
• Decedent passes with a surviving minor child (and spouse). In the case where there is a minor child, the homestead may not be devised at all; not to a spouse, a trust, or to anyone else. The property then passes by the rule of 732.401, which means a plan that says “everything to my spouse” fails as to the home if there is a minor child.

When a devise violates these rules, the gift is void, and the homestead passes as though the restriction’s default applied. In such a case, even the most carefully strategized estate plan does not govern; the statute does. This reason alone makes ensuring that both spouses are properly named on the deed of homestead property a priority for any estate plan.

Can homestead property be transferred to a revocable living trust in Florida?

Yes, Florida permits the transfer of homestead property to a properly drafted revocable living trust without forfeiting the tax exemption, the creditor protection, or the descent protections.

Despite this allowance, the law does not void the devise restrictions. When a decedent is survived by a spouse or minor child, the trust’s distribution provisions are subject to the same limits described above, and a trust that ignores them creates the same void-devise problem.

When this occurs, it is usually not discovered until it’s too late to remedy. Careful drafting, often paired with a spousal waiver, is usually the best way to make outright trust ownership work.

How does a spouse waive homestead rights in Florida?

In Florida, a surviving spouse may waive homestead rights through a valid written agreement, usually in the form of a prenuptial or postnuptial agreement that satisfies Florida Statutes § 732.702.

Accordingly, a general waiver of “all rights” in a marital agreement may or may not reach homestead depending on its language. Therefore, to ensure the intentions of the parties are achieved, it is best that any such waiver be specific and explicit.

For blended families in particular, a properly drafted waiver is frequently the difference between a plan that works and one that collapses at the death of the first spouse.

Why does any of this matter before signing an estate plan?

Because homestead passes outside the probate estate and outside the reach of a personal representative, it may also complicate any later sale. This becomes very critical when heirs need to sell the home during a probate administration. To learn more about how to sell a homestead property during a probate case, visit our article on the subject.

As these rules attach specifically to Florida residents, they are a core reason relocating retirees should have their documents reviewed after establishing Florida domicile.

Frequently Asked Questions

When to Speak with a Florida Estate Planning Attorney about How Homestead can affect your Will or Trust

In Florida, one cannot assume their will or revocable trust controls their homestead. If a decedent is survived by a spouse or a minor child, the Florida Constitution and Chapter 732 of the Florida Statutes decide who receives their homestead, and any provision in their estate planning documents that conflict with those rules is void. Whether a plan works as written depends on the decedent’s family at the moment of death, not on the day they necessarily created the plan.

These outcomes are avoidable with the right planning. Titling the home correctly, drafting trust provisions that respect the devise restrictions, and obtaining a specific spousal waiver where appropriate can all help an owner’s homestead pass the way they intend. Because the rules turn on the family structure, a plan should also be revisited after a marriage, divorce, the birth of a child, or a move to Florida.

If you own a Florida home and your estate plan has not been reviewed with the homestead rules in mind, ASR Law Firm can help you identify gaps before they become problems for your family.

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