Florida Homestead Devise Restrictions
Art. X, § 4(c), Fla. Const.; §§ 732.401, 732.4015, 732.4017, 732.702
Florida's constitution limits how a homestead can be left by will if the owner is survived by a spouse or a minor child, overriding the will's own terms by default. Planning around the restriction — through the statutory election, a spousal waiver, or a trust structure — is essential for any Florida homeowner whose estate plan does something other than leave the home outright to the survivor.
What it is
Fla. Const. art. X, § 4(c), carried into statute at § 732.4015(1), restricts how a Florida homestead may be left at death, separately from the rest of the probate estate. If the owner is survived by a spouse or a minor child, the homestead is not subject to devise at all — with one exception: it may be devised to the owner's spouse if there is no minor child. The restriction exists to keep a surviving spouse and minor children from being written out of the family home.
When the homestead is not devised as the constitution allows, § 732.401(1) supplies the result. It descends as other intestate property, except that if the decedent is survived by a spouse and one or more descendants, the spouse takes a life estate with a vested remainder to the descendants living at the decedent's death, per stirpes. Note what actually triggers that split: a spouse plus descendants of any age, not merely a minor child. The spouse may live there for life but cannot sell the fee or leave it to anyone else, and the descendants hold the ultimate interest but cannot force a sale during the spouse's lifetime.
That life estate is often a poor outcome for a surviving spouse, who is left responsible for a property they cannot sell. Since 2010, § 732.401(2) has offered an alternative: the spouse may instead elect to take an undivided one-half interest in the homestead as a tenant in common, with the other half vesting in the decedent's descendants. Under § 732.401(3) the election must be made within 6 months after the decedent's death and during the spouse's lifetime, by recording a notice of election in the county where the property sits. It converts a life-estate-and-remainder into straightforward co-ownership — a materially different result, and one the spouse has to affirmatively claim within the window.
None of this applies if the owner has no surviving spouse and no minor child — an unmarried owner with only adult children, for instance, can devise the homestead freely like any other asset. And the restriction can be waived: Fla. Stat. § 732.702 permits a spouse to waive homestead devise rights (along with the elective share and other spousal rights) in a valid prenuptial or postnuptial agreement, with proper disclosure and execution formalities — the standard tool for blended-family planning discussed on our Florida Estate Planning for Blended Families page. Titling the homestead in a properly drafted revocable trust, or as tenants by the entireties between spouses, also changes how these restrictions apply and is a common planning response.
When Homestead Devise Restrictions Change Your Plan
These restrictions matter for essentially every Florida homeowner, but they change the actual plan most in these situations:
- You are remarried and want to provide for your current spouse while ultimately preserving the home for children from a prior marriage — see Florida Estate Planning for Blended Families for the structures this typically requires.
- You want to leave the homestead to someone other than your spouse or minor child — the constitution generally will not allow it without a valid waiver in place beforehand.
- You have minor children — the restriction applies with particular force, and planning needs to account for their housing regardless of what the will otherwise says.
- You and your spouse hold the homestead as tenants by the entireties — ownership passes to the surviving spouse automatically by right of survivorship, outside probate and largely outside the devise restrictions, which changes the planning question entirely.
- You want the homestead held in a trust rather than passing under a will — a properly drafted Florida trust can hold homestead property while preserving both the homestead tax exemption and creditor protection, but it must be drafted with these constitutional restrictions specifically in mind.
- You are the surviving spouse and are deciding, within six months of your spouse's death, whether to elect the § 732.401(2) tenancy-in-common interest instead of the default life estate — a decision that should not be made without understanding both outcomes.
This page addresses the planning side of homestead — how to structure a will or trust around these restrictions before death. For the administration side — how a homestead is actually handled once probate is underway — see our Florida homestead in probate page.
Planning a Florida Estate Plan Around Homestead Restrictions
Because the constitutional restriction can override the will's plain terms, homestead planning has to be addressed deliberately rather than left to a generic will or trust template.
- Step 1: Confirm the property actually qualifies as homestead under the constitutional definition — primary residence, size and location requirements — since the restrictions apply only to true homestead property.
- Step 2: Identify who will survive the owner — spouse, minor child, both, or neither — because the applicable rule, and the available planning options, differ entirely depending on the answer.
- Step 3: Decide whether the current default result — life estate to spouse, remainder to descendants, or the § 732.401(2) tenancy-in-common election — actually matches the family's goals.
- Step 4: If it does not, structure a waiver through a properly executed prenuptial or postnuptial agreement under § 732.702, with full financial disclosure, or restructure ownership — tenancy by the entireties, or a Florida-compliant trust — to change how the restriction applies.
- Step 5: Coordinate the homestead plan with the rest of the estate plan — the trust, the will, and any blended-family structures — so the home isn't treated in isolation from everything else.
- Step 6: Revisit after a marriage, divorce, remarriage, or the birth of a child, since each event can change which restriction applies and whether an existing waiver still covers the situation.
Why work with an attorney
Essential, because the homestead devise restriction is one of the few places in Florida law where the constitution overrides a will's plain language, and the failure mode is discovered only in probate — after the plan can no longer be fixed. A will that devises the homestead to someone other than the spouse or minor child, with no valid waiver in place, does not accomplish what it says; the constitutional default takes over instead. We structure the plan — waiver, trust, or entireties ownership — to produce the result the family actually wants, and coordinate it with the broader estate plan rather than treating the home as a standalone asset.
Frequently Asked Questions
Can I leave my Florida homestead to whomever I want in my will?
Only if you have no surviving spouse and no minor child at your death, or if a spouse has validly waived their homestead devise rights. Otherwise, Fla. Const. art. X, § 4(c) restricts the devise regardless of what the will says — the spouse and minor children are constitutionally protected ahead of the will's terms.
What happens to the homestead if I'm survived by a spouse and don't address it in my will?
If you are survived by a spouse and one or more descendants, § 732.401(1) gives the surviving spouse a life estate with a vested remainder to your descendants. Since 2010, § 732.401(2) has let the spouse instead elect an undivided one-half interest as a tenant in common, with the other half going to the descendants. Under § 732.401(3) that election must be made within 6 months after death and during the spouse's lifetime, by recording a notice of election.
Can my spouse waive their homestead rights?
Yes, through a valid prenuptial or postnuptial agreement under Fla. Stat. § 732.702, with proper financial disclosure and execution. This is the standard mechanism in blended-family planning — see our Florida Estate Planning for Blended Families page — when a spouse agrees to something other than the constitutional default.
Does putting my homestead in a trust avoid these restrictions?
Not automatically — a Florida trust holding homestead property must still be drafted with the constitutional restrictions in mind if a spouse or minor child survives. A properly drafted trust can preserve the homestead tax exemption and creditor protection while still working within, or around, the devise restriction, but it requires deliberate drafting, not a generic trust template.
What if my spouse and I own the home as tenants by the entireties?
Ownership passes automatically to the surviving spouse by right of survivorship outside of probate, largely outside the devise-restriction analysis, since there is no probate transfer for the restriction to apply to. This is a common and effective structure for married couples in a first marriage without competing claims from children of a prior relationship.
Does this restriction apply if I have no minor children and I'm not married?
No. The constitutional devise restriction exists specifically to protect a surviving spouse or minor child. An unmarried owner with only adult children can devise the homestead freely, the same as any other asset.
The information on this page is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Florida law changes. Consult a licensed Florida attorney for guidance specific to your matter.
Make sure your homestead passes the way you actually intend
Florida's constitution can override a will's plain terms on the family home. Call (407) 843-0430 or schedule a consultation with our Orlando estate planning attorneys to structure your plan around — or within — the homestead devise restrictions.
Or text PROBATE to (407) 906-9507 for a faster response.
Yergey & Yergey, P.A. | 910 N. Fern Creek Avenue, Orlando, FL 32803
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