Florida homestead law is a set of constitutional protections that shields your primary residence from most creditors, caps the property taxes that can be assessed on it, and restricts how you are allowed to leave the home to others when you die. For estate planning, the most important takeaway is this: if you are married or have a minor child, Florida does not let you freely give your house away in your will the way you might assume. Understanding how the homestead protects—and constrains—the family home is the single most important step a first-time planner in South Florida can take.
I have watched too many young families discover this the hard way, usually after a parent has passed and the surviving spouse learns that a well-meaning but invalid devise has frozen the title to the only home they have. The good news is that homestead law, properly understood, is one of the strongest tools you have. The bad news is that it punishes guesswork. Let’s walk through it the way I would in my office.
The three faces of Florida homestead
People use the word “homestead” to mean three different things, and they are governed by different parts of Florida law. Mixing them up is where confusion starts.
- The creditor protection. Article X, Section 4 of the Florida Constitution exempts your homestead from forced sale by most creditors. This is the protection that makes Florida famous nationally—a judgment creditor generally cannot seize your home to satisfy an ordinary debt.
- The tax benefit. The homestead exemption that reduces your assessed value (and the Save Our Homes assessment cap under Article VII) lowers your annual property tax bill. This is the homestead you file for at the county property appraiser’s office.
- The devise and descent restriction. Also in Article X, Section 4, and detailed in Florida Statutes §732.401 and §732.4015, this controls who you can leave the home to when you die if you have a surviving spouse or minor child.
All three matter to your estate plan, but the third one—the restriction on how you devise the home—is the one that quietly wrecks plans. So we’ll spend most of our time there.
Why your will may not control your house
Here is the rule that surprises almost everyone. Under the Florida Constitution and §732.4015, if you are survived by a spouse or a minor child, your homestead is not devisable except in very narrow circumstances. You cannot simply write “I leave my house to my brother” in your will and have it stick if you leave behind a husband, wife, or child under 18.
If you violate the restriction—say you have a minor child and try to leave the home to anyone other than that child—the devise fails. The property then passes by the constitutional default rules in §732.401, not by your wishes. That default has changed over the years, so the order matters:
- If there is a surviving spouse and one or more descendants (children, grandchildren), the spouse takes a life estate in the homestead, with a vested remainder to the descendants. In plain English: the spouse can live there for life, and the kids own it afterward.
- Alternatively, under §732.401(2), the surviving spouse may elect—within six months of the owner’s death—to take an undivided one-half interest as a tenant in common instead of the life estate, with the descendants taking the other half. This election exists precisely because life estates can trap a spouse.
- If there is a surviving spouse and no descendants, the spouse can take the homestead outright in fee simple, and you are permitted to devise it to that spouse.
- If there is a minor child, the homestead cannot be devised at all—not even to the surviving spouse—and passes to the heirs under the protective rules.
That fourth point is the one I circle in red for young families. If you have a child under 18, you essentially cannot will your house to your spouse outright. The law is trying to protect the child, but the side effect is that planning has to be deliberate.
The life-estate trap, in real life
Imagine a couple in Boca Raton, second marriage for one of them, with adult children from a prior relationship. The husband owns the home in his name alone and leaves everything to his wife. Because there are descendants, the invalid-or-not analysis kicks in, and the wife may end up with only a life estate while his children hold the remainder. She is responsible for taxes, insurance, and upkeep on a house she can’t sell, and his kids are waiting in the wings as remaindermen. Nobody is happy, and the family relationship frays. None of this was the husband’s intent—he just didn’t know homestead overrode his will.
Tools that actually work for the family home
So how do experienced Florida attorneys plan around these restrictions? A few approaches do the heavy lifting, and the right one depends on your family structure.
Spousal waiver
A surviving spouse’s homestead rights can be waived—in a prenuptial agreement, a postnuptial agreement, or a separate written waiver that meets the requirements of §732.702. This is common in blended families where each spouse wants their own home to pass to their own children. The waiver must be in writing and properly executed; a vague mention won’t do it.
Tenancy by the entireties
For married couples who want the simplest outcome, holding the home as tenants by the entireties means that when the first spouse dies, the survivor automatically owns the whole property by operation of law—outside probate, and outside the devise restriction. It also adds a powerful creditor shield: a creditor of just one spouse generally cannot reach entireties property. For many first-time-planning couples with no minor children from outside the marriage, this is the cleanest path.
Enhanced life estate (the “Lady Bird” deed)
Florida is one of the few states that recognizes the enhanced life estate deed, commonly called a Lady Bird deed. It lets you keep full control of your home during your lifetime—you can sell it, mortgage it, or change your mind—while naming who receives it automatically at death, avoiding probate. Because you retain control, it doesn’t count as a completed gift, and it preserves your homestead tax exemption and Medicaid planning posture. The catch: a Lady Bird deed still cannot override the constitutional devise restriction if you have a spouse or minor child, so it works best for single owners or in coordination with a spousal waiver.
Revocable living trust
A revocable trust can hold homestead property and is a backbone of many South Florida plans. Florida case law and statute (§736.1109) confirm that homestead held in a properly drafted revocable trust keeps its creditor protection and tax exemption. The trust lets the home pass without probate while still respecting—and planning around—the devise rules. This is where coordinated drafting matters; the trust language has to mesh with the homestead restrictions, not ignore them. If you want to see how a comprehensive plan integrates the residence with trusts and other instruments, the team at builds these as a single coordinated package rather than isolated documents.
Homestead and creditor protection: the part Floridians love
Separate from the devise rules, the homestead’s creditor exemption is genuinely one of the strongest in the country. There is no dollar cap on the value protected (unlike many states), only a size cap: up to half an acre within a municipality, or up to 160 acres outside one. A judgment from a car accident, a business failure, or a credit card default generally cannot force the sale of your protected homestead.
It is not absolute, though. The exemption does not protect against:
- Mortgages and home equity loans you voluntarily took out on the property.
- Property taxes and special assessments.
- Mechanic’s liens for work performed on the home.
- Federal tax liens (the IRS can attach, though enforcement is limited).
One nuance that trips people up: there’s a federal bankruptcy lookback. If you bought your Florida homestead within roughly 1,215 days before filing bankruptcy, federal law (11 U.S.C. §522) can cap the protected equity. Moving to Florida and dumping cash into a mansion the week before a bankruptcy filing does not work the way internet rumor suggests.
The tax exemption you have to actually file for
The creditor and devise protections attach automatically to a qualifying homestead. The tax exemption does not—you have to apply. File for the homestead exemption with your county property appraiser (Miami-Dade, Broward, or Palm Beach for most of our clients) by March 1 of the tax year. It knocks up to $50,000 off your assessed value for non-school taxes and, just as importantly, activates the Save Our Homes cap that limits annual assessment increases to 3% or the change in CPI, whichever is lower.
For young families, Save Our Homes is the quiet hero. Over a decade of rising South Florida values, that 3% cap can save you thousands every year compared to an uncapped assessment. And the portability rules let you carry a chunk of that built-up benefit to your next Florida home.
Common mistakes I see first-time planners make
- Assuming the will controls. It usually doesn’t, for homestead, when there’s a spouse or minor child.
- Adding a child to the deed to “avoid probate.” This creates a present gift, can trigger gift-tax reporting, exposes the home to that child’s creditors and divorce, and may jeopardize the homestead exemption. A Lady Bird deed or trust achieves the goal without those landmines.
- Forgetting to fund the trust. A revocable trust that doesn’t actually hold the deed protects nothing. The deed has to be properly retitled.
- Ignoring the minor-child rule. If you have young kids, your homestead plan has to be built around the descent restriction from day one.
- Copying out-of-state forms. Florida homestead is constitutional and idiosyncratic; a generic online deed or a trust drafted for another state can quietly void the protections you’re counting on.
This is also where Florida’s planning intersects with strategies people associate with other states. If you have family or property ties in New York, for instance, the analysis around retained-life-estate and home-transfer tools differs meaningfully—you can see how that’s handled in . And for families doing long-term-care or Medicaid planning where preserving benefits is the goal, a is a related tool worth understanding before you assume the Florida-only approach is the full picture.
How the home fits into the rest of your plan
The family home is rarely your only asset, but it is usually the emotional center of the plan—it’s where the kids grew up, and it carries the most weight when a family is grieving. A complete estate plan ties the homestead to your will, your trust, your beneficiary designations, and your healthcare and financial powers of attorney so that nothing contradicts anything else. When those pieces are coordinated, the home passes smoothly; when they aren’t, the family ends up in Florida probate fighting over a house everyone thought was settled.
If you’re a young South Florida family writing your first real estate plan, start with three questions: Who do I want to end up with the home? Do I have a spouse or a minor child? And does the way the home is currently titled actually support that outcome? If you can’t answer all three with confidence, it’s worth an hour with an attorney before something is signed. You can reach out to our office to walk through your specific situation.
Homestead law in Florida is generous, but it is exacting. Plan with it—not around it—and the family home stays exactly where it belongs: with your family.
Frequently Asked Questions
Can I leave my Florida home to anyone I want in my will?
Not if you have a surviving spouse or a minor child. Under the Florida Constitution and Florida Statutes 732.4015, homestead property generally cannot be freely devised in those situations. If you try, the devise fails and the home passes under the default descent rules in 732.401 (typically a life estate to the spouse with a remainder to descendants). Only an owner with no spouse and no minor child has full freedom to devise the homestead.
Does a revocable living trust keep my Florida homestead protections?
Yes, when it’s drafted correctly. Florida Statute 736.1109 and case law confirm that homestead held in a properly structured revocable trust retains both its creditor exemption and its tax exemption, while allowing the home to pass outside probate. The trust language must respect the devise restrictions, and the deed must actually be retitled into the trust, or the protections can be lost.
What is a Lady Bird deed and is it valid in Florida?
A Lady Bird deed, or enhanced life estate deed, is valid in Florida. It lets you keep full control of your home during your lifetime, including the right to sell or mortgage it, while naming who automatically receives it at your death, avoiding probate. It preserves your homestead tax exemption and isn’t a completed gift. It still cannot override the constitutional devise restriction if you have a spouse or minor child.
How much equity does the Florida homestead exemption protect from creditors?
There is no dollar limit on the equity protected from most creditors, only a size limit: up to half an acre inside a municipality or up to 160 acres outside one. However, it does not protect against voluntary mortgages, property taxes, mechanic’s liens, or federal tax liens, and a federal bankruptcy lookback of about 1,215 days can cap protected equity if you recently acquired the home.
Do I have to apply for the Florida homestead tax exemption?
Yes. Unlike the creditor and devise protections, the tax exemption is not automatic. You must file with your county property appraiser (Miami-Dade, Broward, or Palm Beach for most South Florida residents) by March 1 of the tax year. Filing also activates the Save Our Homes cap, which limits annual assessment increases to 3% or the CPI change, whichever is lower.
