If you are inheriting homestead property in Florida, the Florida Constitution — not the will alone — usually decides who gets the house, and it protects that house from most of the deceased person’s debts. But those protections come with strict rules about who can inherit, a six-month deadline that reshapes a surviving spouse’s ownership, and property tax consequences that hit the first bill after death. What follows is what an heir actually needs to know and do.
What Counts as Homestead
The protections only attach to a specific kind of property. The deceased person must have been a permanent Florida resident who used the property as their primary home. Inside an incorporated city or town, homestead covers up to one-half acre of contiguous land including the residence; outside a municipality, up to 160 contiguous acres.1FindLaw. Florida Constitution Art. X, Section 4 – Homestead; Exemptions
Vacation homes, seasonal residences, and rental properties do not qualify, even if the deceased spent significant time at them. The property must have been their permanent home at the time of death.
Who Can Actually Inherit the Home
This is where most people’s assumptions about wills fall apart. Florida’s constitution limits who a homeowner can leave the property to at death when certain close family members survive.
If the deceased is survived by a spouse and minor children, the property cannot be left to anyone by will. Not to an adult child, not to a sibling, not to a charity. Any will provision attempting to do so is void, and the property passes under the statutory descent rules instead.1FindLaw. Florida Constitution Art. X, Section 4 – Homestead; Exemptions
If a spouse survives but there are no minor children, the homestead can be left to the spouse by will, but to no one else. A will that tries to leave the homestead to an adult child or a friend while a spouse survives is void as to that property.2The Florida Legislature. Florida Statutes Section 732.4015 – Devise of Homestead
If there are minor children but no surviving spouse, the property likewise cannot be devised and passes by descent.
Only when there is no surviving spouse and no minor child does the restriction fall away. In that case the homeowner can leave the property to anyone by will, and if there is no will, it passes under Florida’s general intestacy rules to the closest living relatives.
How the Property Descends When the Will Can’t Control
When the constitution blocks the will (or there is no will), Florida Statutes section 732.401 decides who takes what. The default rule sends the property through intestacy, but a critical exception applies when both a surviving spouse and descendants exist.
The Spouse’s Life Estate
If the deceased is survived by both a spouse and one or more descendants — whether minor or adult — the surviving spouse automatically receives a life estate in the homestead, and the descendants receive a vested remainder.3Florida Senate. Florida Statutes Section 732.401 – Descent of Homestead The spouse can live in and use the home for life. The descendants own it outright when that life estate ends.
The arrangement often creates friction. The life tenant pays day-to-day expenses like taxes and insurance, while major repairs and capital improvements are shared with the remainder holders. The spouse cannot sell the home without the cooperation of those remainder holders, which becomes a real problem if the spouse later needs to move to assisted living.
The Six-Month Election
Because the life estate is often unworkable, the surviving spouse can choose a different arrangement: an undivided one-half interest in the property as a tenant in common with the descendants, who take the other half.3Florida Senate. Florida Statutes Section 732.401 – Descent of Homestead As co-owners, the parties have real flexibility to sell and split the proceeds, or for one side to buy out the other.
The election must be made within six months of the deceased person’s death, and once filed it cannot be undone. The spouse files a notice of election with the legal description of the property in the county where the property is located.3Florida Senate. Florida Statutes Section 732.401 – Descent of Homestead Miss the window and the spouse is locked into the life estate for life. Six months passes quickly while a family is grieving and probate is just getting started.
Jointly Owned Property
These descent rules do not apply to homestead held as tenants by the entireties with a spouse or as joint tenants with rights of survivorship. That property passes automatically to the surviving co-owner by operation of law, regardless of the will or the descent rules.3Florida Senate. Florida Statutes Section 732.401 – Descent of Homestead
Debts That Follow the House
The Florida Constitution exempts homestead property from forced sale and prevents any judgment from creating a lien against it.1FindLaw. Florida Constitution Art. X, Section 4 – Homestead; Exemptions Credit card debt, medical bills, personal loans, and other unsecured obligations of the deceased cannot force a sale, and that protection passes with the property to the spouse or heirs.
Three categories of debt survive the transfer anyway:
- Mortgages and purchase-money loans used to buy, improve, or repair the property. An heir who wants to keep the home must continue paying or refinance.
- Property taxes and special assessments, which stay attached to the property.
- Labor liens for unpaid work performed on the property, such as construction or landscaping.
One point that catches heirs off guard: the creditor protection shields the home from the deceased’s debts. It does nothing to shield it from the heir’s own creditors once the heir owns it.
Reverse Mortgages
A reverse mortgage falls squarely inside the mortgage exception and creates a time-sensitive problem. When the borrower dies, the full loan balance becomes due. Heirs who want to keep the home must repay either the full loan balance or 95% of the home’s current appraised value, whichever is less.4Consumer Financial Protection Bureau. What Happens to My Reverse Mortgage When I Die? That 95% rule matters when the loan balance exceeds the home’s value: the heir can settle for less than the full amount owed. If the heir cannot pay, the lender can foreclose. Heirs actively trying to sell or arrange financing can request a delay of up to 180 days.
Clearing Title Before You Can Sell or Refinance
Homestead property technically passes outside the formal probate estate, but the transfer still needs court recognition before the heir can sell, refinance, or convey the home. Without a court order confirming homestead status, title companies will not insure the property, and no buyer or lender will proceed.
The process starts with a Petition to Determine Homestead Status filed in the probate court. The petition must include the property’s legal description (a street address alone is not enough), the decedent’s date of death, the names of the surviving spouse and lineal descendants, and the date of birth of any minor heirs. The petitioner has to serve formal notice on all creditors and on each homestead beneficiary, and the creditors’ claims period must expire before the court issues its order.
Once the court reviews the facts and confirms the property qualifies, it enters an Order Determining Homestead Status identifying the rightful owners. That order establishes clean, marketable title. Court filing fees in Florida probate typically run a few hundred dollars, and attorney fees for a homestead determination petition vary widely with complexity. An uncontested petition costs far less than one where a creditor challenges the homestead status or family members disagree over ownership.
Property Tax Consequences the First Year
Inheriting a homestead creates immediate property tax exposure that often does not register until the first bill arrives. Two separate benefits are at stake.
The Homestead Exemption Doesn’t Transfer
Florida’s homestead tax exemption reduces the taxable value of a primary residence by up to $50,000.5Florida Department of Revenue. Property Tax Exemptions and Additional Benefits The deceased person’s exemption terminates at death. An heir who plans to live in the property as their permanent residence must file a fresh application with the county property appraiser by March 1 of the tax year they want the exemption.6Florida Senate. Florida Statutes Section 196.011 – Annual Application Required for Exemption Missing March 1 forfeits the exemption for the whole year, though late filers can petition the county value adjustment board for relief on a showing of extenuating circumstances.
Save Our Homes and the Inheritance Carve-Out
The bigger financial hit tends to come from the Save Our Homes assessment cap. The Florida Constitution limits annual increases in a homestead’s assessed value to 3% or the change in the Consumer Price Index, whichever is lower.7FindLaw. Florida Constitution Art. VII, Section 4 – Taxation; Assessments Over years, this creates a wide gap between assessed value and market value. When ownership changes, the property is normally reassessed to full market value as of January 1 of the following year, and the tax bill can jump sharply.
Florida law carves out specific inheritance transfers from that reassessment. If the homestead passes to a surviving spouse or to minor children under section 732.401, the transfer is not treated as a change of ownership for assessment purposes, and the Save Our Homes cap continues uninterrupted.8The Florida Legislature. Florida Statutes Section 193.155 – Homestead Assessments The same carve-out applies when the property passes to another permanent resident who was legally or naturally dependent on the deceased. An adult child who was not a dependent triggers reassessment and loses the SOH benefit.
Federal Tax and the Step-Up in Basis
Florida imposes no state estate tax and no inheritance tax. No Florida estate tax has been due for anyone who died on or after January 1, 2005.9Florida Department of Revenue. Estate Tax The only estate-level exposure is federal, and the federal estate tax applies only to estates above the basic exclusion amount, which is $15,000,000 per person for 2026.10Internal Revenue Service. What’s New – Estate and Gift Tax Form 706 must be filed if the gross estate exceeds the threshold, or if the estate elects to transfer the unused exclusion to a surviving spouse.11Internal Revenue Service. Frequently Asked Questions on Estate Taxes
The rule that matters most to the average heir is the step-up in basis. Your cost basis for capital gains purposes is not what the deceased paid; it resets to the property’s fair market value on the date of death.12Office of the Law Revision Counsel. 26 U.S. Code Section 1014 – Basis of Property Acquired From a Decedent If the deceased bought the home for $120,000 thirty years ago and it was worth $450,000 at death, your basis is $450,000. Sell later for $470,000 and you owe capital gains only on the $20,000 difference, not on the $350,000 of appreciation. The IRS also treats inherited property as held long-term regardless of how quickly you sell, so any gain qualifies for the lower long-term capital gains rate.
Get the basis documented. A professional appraisal of the property as of the date of death is the cleanest way to establish the stepped-up value. Without a solid appraisal, disputes with the IRS over basis are much harder to resolve if the property is eventually sold at a gain.