When a Florida resident dies without a will, their homestead does not pass under the ordinary intestate rules that govern the rest of the estate. Florida homestead intestate succession is controlled by the state constitution and Section 732.401, and the outcome turns almost entirely on who survived the owner. A surviving spouse with no descendants takes the home outright. A surviving spouse together with descendants triggers a split: the spouse gets a life estate and the descendants get the remainder, unless the spouse elects within six months to take a one-half interest as tenants in common instead. If there is no surviving spouse and no minor child, the home descends to the lineal descendants per stirpes.
When These Rules Actually Apply
Homestead treatment is not automatic for every property the decedent owned. The home must have been the decedent’s permanent residence at the time of death, meaning they intended it as their fixed home and actually lived there. Vacation homes, rentals, and investment properties do not qualify.
Size limits also matter. Property inside a municipality is protected up to one-half acre of contiguous land and the improvements on it. Property outside a municipality is protected up to 160 contiguous acres. There is no cap on dollar value. If the parcel exceeds the acreage limit, only the excess loses protection and falls back into the ordinary estate.
One more threshold question: how was title held? If the home was owned as tenancy by the entireties (the default for married couples in Florida) or as joint tenancy with right of survivorship, Section 732.401 does not apply at all. The surviving co-owner takes the entire property automatically by operation of law. The life estate framework, the election, and the descendants’ remainder interest are irrelevant. Many Florida couples already hold title this way, which means the descent rules below never come into play for them.
Surviving Spouse and No Descendants
This is the clean case. When the owner dies without any surviving descendants but leaves a spouse, the spouse takes the entire homestead in fee simple. Section 732.401’s life-estate-and-remainder framework only kicks in when both a spouse and descendants survive, so a spouse with no descendants to share with simply inherits outright. No life estate, no election, no remainder interest for anyone else.
No Spouse and No Minor Child
When the decedent leaves no surviving spouse and no minor children, the constitutional restrictions on homestead drop away. Without a will, the home descends to the lineal descendants per stirpes: the closest living generation inherits equally, and if any member of that generation predeceased the owner, their share drops to their own children. The constitutional creditor protection travels with the property to the heirs, so the home stays shielded from the decedent’s unsecured creditors.
If there are no descendants either, the home passes under Florida’s general intestate succession rules to whichever relatives the statute identifies next.
Surviving Spouse Plus Descendants: The Life Estate Default
This is where things get complicated, and it is the scenario most families actually face. When the decedent is survived by both a spouse and one or more descendants, Section 732.401 sets a default: the surviving spouse receives a life estate in the homestead, and the decedent’s descendants receive a vested remainder interest, distributed per stirpes.
A life estate gives the surviving spouse the right to live in and use the home for the rest of their life. It is not full ownership. The spouse cannot sell the property outright because they do not hold the entire title. The descendants hold a vested remainder, meaning they own a future interest in the property right now but cannot use or occupy it until the life estate ends. When the spouse dies, the life estate terminates automatically and the descendants take full possession.
The framework applies regardless of whether the descendants are also the surviving spouse’s children. In a blended family, children from a prior relationship still receive the vested remainder. The surviving spouse still gets the life estate, but they share the property’s future with stepchildren who may have very different plans for it.
Expenses get split too. Under Chapter 738, the life tenant is responsible for ordinary recurring costs: property taxes, insurance premiums, routine maintenance, and interest on existing debt secured by the property. The remaindermen bear the cost of mortgage principal payments, extraordinary repairs, and expenses related to the property’s title. A life tenant who neglects maintenance or stops paying taxes risks a claim for waste from the remaindermen, and a court can intervene if the neglect is serious.
The Six-Month Election to Take One-Half Instead
Florida gives the surviving spouse a way out of the life estate. Instead of accepting it, the spouse can 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 per stirpes.
The election changes the ownership dynamic. Instead of one party holding a life interest and the other holding a future interest, both sides hold present, equal ownership shares. Either co-owner can force a sale through a partition action if they cannot agree on what to do with the property.
The procedural requirements are strict:
- The election must be made within six months of the decedent’s death and during the surviving spouse’s lifetime. The deadline generally cannot be extended.
- The spouse must file a notice of election that includes the legal description of the homestead, for recording in the official records of the county where the property is located.
- Once filed, the election cannot be undone.
If the spouse misses the six-month window, the life estate arrangement becomes permanent. A narrow exception exists when a guardian or attorney-in-fact acts on behalf of an incapacitated spouse. They can petition the court within the same six-month period, and if the petition is timely, the court may grant at least 30 additional days to make the election.
Which Option Serves the Spouse Better
Neither option wins across the board. The life estate guarantees the surviving spouse exclusive use of the home for life. Nobody can force a sale while the spouse is alive. The tradeoff is inflexibility: the spouse cannot sell or refinance without cooperation from the remaindermen, and they carry the ongoing costs of taxes and maintenance on a property they do not fully own.
The tenancy in common gives both sides a present ownership interest that each can sell, mortgage, or transfer independently. The spouse owns half outright rather than holding a temporary possessory right. But either party can file a partition action and force a sale, so a surviving spouse who wants to stay in the home long-term could end up defending against a partition suit filed by the decedent’s adult children. A spouse who needs flexibility or wants a cleaner title arrangement often prefers the election. A spouse whose main concern is staying put undisturbed usually does better with the default life estate.
What Happens to the Mortgage and the Creditors
If the home carries a mortgage, the lender cannot call the loan due just because the borrower died. The federal Garn-St. Germain Act prevents enforcement of a due-on-sale clause when property transfers to a relative as a result of the borrower’s death. The surviving spouse or heirs keep the existing mortgage in place without having to repay it all at once. Someone still has to make the payments, though, and purchase money mortgages are one of the explicit exceptions to Florida’s homestead creditor protection. If payments stop, the lender can foreclose.
Other unsecured creditors of the decedent generally cannot touch the home. The constitutional homestead exemption passes to the surviving spouse or heirs and shields the property from most civil judgments, credit card balances, medical bills, and personal loans. The narrow exceptions are unpaid property taxes, purchase money loans, debts taken out specifically to improve or repair the property, and labor liens for work performed on it. Federal tax liens also survive because federal law overrides the state exemption.
Clearing Title Through Probate
Homestead passes by operation of law rather than through the personal representative’s administration of the estate, but the transfer still needs to be formally recognized to clear title. A Petition to Determine Homestead Status is filed with the circuit court, asking the judge to confirm that the property qualifies as constitutionally protected homestead and to identify who holds title. Florida Probate Rule 5.405 governs the process.
The resulting court order names the individuals who hold title and specifies the nature of their interests, whether as life tenant and remaindermen under the default rule, as tenants in common after an election, or as sole owner if the spouse took fee simple. The order gets recorded in the county’s official records. Until it is recorded, title remains clouded, which effectively prevents anyone from selling, mortgaging, or refinancing the property. If the surviving spouse needs to refinance or the family wants to sell, getting this order should be the first priority, not an afterthought.