Florida's homestead law protects your primary residence from most creditor claims and restricts who you can leave it to if you have a spouse or minor child, no matter what your will says. Because the rule sits in the state constitution, it overrides conflicting instructions in an ordinary will.
What the Florida Constitution Actually Protects
Florida's homestead protections come from Article X, Section 4 of the Florida Constitution, which covers three distinct benefits.
- Protection from forced sale. A judgment or execution generally cannot force the sale of your homestead to satisfy an unsecured debt. This does not cover taxes and assessments on the property, a mortgage or other debt you took on to buy or improve it, or a contractor's lien for labor performed on the home.
- Size limits. The homestead exemption covers up to one hundred sixty acres outside a municipality, or up to one half acre within a municipality, limited to your residence.
- Restrictions on devise. If you are survived by a spouse or a minor child, the constitution restricts how you can leave the homestead in your will.
Who Qualifies for Homestead Protection
To claim homestead protection, you must own and occupy the property as your permanent Florida residence. A seasonal or secondary home does not qualify, which rules out the benefit for part-time Florida residents. You can hold the property in your own name or in a revocable trust and still qualify, but a corporation cannot claim the homestead exemption. You are also limited to one homestead at a time, so owning multiple Florida properties does not multiply the protection.
How the Devise Restriction Works
This is the part of the law that most often surprises people writing a will. If you are survived by a spouse, you generally cannot leave the homestead to someone else instead of your spouse, unless your spouse waived that right in a valid prenuptial or postnuptial agreement. If you have no spouse but do have a minor child, you cannot devise the homestead away from that child. These restrictions exist to prevent a homeowner from leaving a surviving spouse or minor child without a place to live, and they override a contrary instruction in an ordinary will.
Who Inherits a Florida Homestead
When the devise restriction applies, Florida law sets out who has a right to the property:
- Surviving spouse alone. If there is a surviving spouse and no minor child, the spouse is generally entitled to the homestead regardless of what the will says, unless the spouse validly waived the right.
- Minor children alone. Without a surviving spouse, minor children inherit the homestead, typically held for their benefit until they reach adulthood, often with a guardian appointed to manage it.
- Surviving spouse and minor children. Florida law gives the surviving spouse a choice between a life estate, allowing them to live in the home for the rest of their life while the children hold the remainder interest, or a fifty percent interest as tenants in common with the children.
Homestead and Bankruptcy Protection
Florida's homestead exemption is one of the strongest in the country against bankruptcy, but it is not absolute. Federal bankruptcy law caps how much home equity you can protect if you acquired that equity in the 1,215 days, roughly 40 months, before filing. Under 11 U.S.C. Section 522(p), equity acquired during that window above a set dollar amount is not protected, and that federal cap is adjusted periodically for inflation and stood at $214,000 as of the most recent adjustment. Equity you owned before that 1,215-day window is not subject to the cap. If you have lived in Florida and owned your home well before any bankruptcy filing, this limitation typically will not apply to you at all.
How Homestead Interacts With Probate
Under Section 733.607 of the Florida Statutes, the personal representative of an estate does not have authority to take possession of protected homestead property. That means your home generally passes to your spouse or heirs outside the usual probate administration. The probate court can still get involved when there is a dispute about whether a property actually qualifies as a homestead, which is common enough that Florida has a dedicated probate rule covering exactly that question.
A Worked Example
Say you remarry later in life and want your home to go to your adult children from your first marriage instead of your current spouse. If you simply write that instruction into your will, Florida's constitutional devise restriction can override it: your spouse may still be entitled to a life estate in the home even though your will says otherwise, unless your spouse signed a valid waiver in a prenuptial or postnuptial agreement before your death. This is one of the most common and most avoidable estate planning mistakes in Florida blended families, and it comes up just as often when minor children are involved. See our guide on writing a Florida estate plan with minor children for how that scenario plays out.
How FastWill Handles Florida Homestead Planning
FastWill's Florida will builder asks the right questions about your marital status, minor children, and real property so your homestead intentions are addressed correctly from the start, rather than discovered as a problem after you have passed away. If you want the home to pass through a trust instead of your probate estate, our trust package can help you structure that transfer consistent with the homestead rules.
Frequently Asked Questions
Can I leave my Florida homestead to anyone I want in my will?
Only if you have no surviving spouse and no minor children, or your spouse validly waived homestead rights. Otherwise, the constitutional devise restriction controls who inherits.
Does my homestead go through probate in Florida?
Generally not in the traditional sense. The personal representative does not control protected homestead property, though the probate court can be asked to confirm a property's homestead status.
Is my Florida home fully protected if I file bankruptcy?
Mostly, but not without limit. Equity acquired within about 40 months before filing is capped, currently around $214,000, under federal bankruptcy law.
Can a creditor ever force the sale of my Florida homestead?
Yes, in limited cases, including unpaid property taxes, a mortgage on the home, and contractor liens for work performed on the property.
What happens if I own my Florida home in a trust instead of my own name?
You can still qualify for homestead protection if the property is held in a qualifying revocable trust, but a corporation cannot claim the exemption.
If you own a home in Florida, make sure your will actually accounts for the state's homestead rules. Start with FastWill's online will builder to put a Florida-specific plan in place.
