Estate Planning · Haute Lawyer Network

Florida Homestead: Who Can You Leave Your Home To?

Last reviewed: October 2026 · Jurisdiction: Florida

If you die owning a Florida homestead and you're survived by a spouse or a minor child, Florida's Constitution limits who you can leave that home to. With a minor child, you can't leave it by will or trust to anyone, not even your spouse. With a spouse and no minor child, you can leave it only to your spouse. If your will or trust tries to leave it to someone else, that gift fails and the home passes under a fixed statutory formula, often a life estate for the spouse with the rest going to your descendants. If you leave no spouse and no minor child, you can leave the home to anyone. A spouse can waive these protections in advance, by a signed agreement or by specific language in a deed.

At a glance

Question	Short answer
Where does the rule come from?	Fla. Const. Art. X, §4(c), repeated in Fla. Stat. §732.4015
Who is protected?	Your surviving spouse and any minor child
Survived by a minor child?	You can't devise the homestead at all
Survived by a spouse, no minor child?	You can devise it only to your spouse
No spouse, no minor child?	No devise restriction
Does a revocable trust get around it?	No. A trust disposition counts as a devise (§732.4015(2))
What if the will breaks the rule?	The home passes as intestate property under §732.401
Can a spouse waive it?	Yes, by a written agreement with two witnesses (§732.702) or specific deed language (§732.7025)

What the rule says

Florida's Constitution says "the homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner's spouse if there be no minor child" (Art. X, §4(c)). Section 732.4015 of the Florida Statutes repeats the rule.

"Devise" means a gift at death by will or by trust (§731.201(10)). The restriction is separate from the better-known homestead protections: the exemption from forced sale by most creditors in §4(a), and the property-tax exemption covered in What Is a Homestead Exemption?.

Who is protected

A surviving spouse. If you're married when you die, your spouse is protected unless they waived their rights (see below).
A minor child. The Constitution doesn't define the age; Florida law generally treats people 18 and older as adults (Fla. Stat. §743.07). If any child is a minor at your death, you can't devise the homestead, even to your spouse.
Adult children aren't protected by the devise rule. If you're survived by adult children but no spouse and no minor child, you can leave the home to anyone.

What happens if a will or trust breaks the rule

The gift fails, and the homestead "shall descend in the same manner as other intestate property" (§732.401(1)):

Spouse and descendants: your spouse takes a life estate (the right to the home for life), and your descendants alive at your death take the remainder, per stirpes.
Or the spouse's one-half election: instead of the life estate, your spouse can elect to take an undivided one-half interest as a tenant in common, with the other half going to your descendants (§732.401(2)).
The election must be made within 6 months after the death, during the spouse's lifetime, by recording a notice of election in the county where the home is.
Once made, it's irrevocable. An attorney-in-fact or guardian can elect only with court approval, and must petition within the same 6 months.
Spouse and no descendants: the spouse generally takes the entire intestate estate (§732.102).
Minor child and no spouse: the home passes to your descendants under the intestacy rules.

Life estate or one-half interest affects who pays for what. Under §732.401(3), ordinary expenses and taxes are split between the life tenant and the remainder holders under Florida's principal and income rules (ch. 738), and between co-owners in proportion to their shares after an election. Ask a lawyer which option fits before the 6 months run.

Does a revocable trust avoid the rule?

No. For this rule, the "owner" includes the grantor of a revocable trust, and a "devise" includes a disposition by trust of what would have been your homestead (§732.4015(2)). Putting the home in a revocable trust can help with probate, but it doesn't change who can inherit it.

Lawful ways to plan around it

Leave the home to your spouse when there's no minor child. That's allowed by the Constitution.
A spousal waiver by agreement. Under §732.702, a spouse can waive homestead rights, before or after marriage, in a written contract, agreement or waiver signed in the presence of two subscribing witnesses. If signed after marriage, each spouse must first give the other fair disclosure of their estate; before marriage, that disclosure isn't required by this section. A waiver of "all rights" in the other spouse's property includes homestead. This is often part of a prenup.
A waiver in a deed. Under §732.7025, a spouse who signs or joins a deed waives the devise restrictions if the deed includes this or substantially similar language: "By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse from devising the homestead property described in this deed to someone other than me." That waiver doesn't give up creditor protection, and the spouse still has to join any later sale, mortgage or gift.
A lifetime transfer. A transfer during life, including into an irrevocable trust, isn't a devise if you don't keep a power to revoke it or take it back (§732.4017). The Constitution still requires your spouse to join a sale, mortgage or gift of the homestead, and a lifetime gift has its own tax and control trade-offs.
Title with your spouse. You and your spouse can deed the home to yourselves as tenants by the entirety (Art. X, §4(c); §689.11). Property held that way, or in joint tenancy with right of survivorship, isn't "protected homestead" for probate purposes (§731.201(33)); it passes to the surviving owner.

Waivers and transfers are where most of the legal risk is. A waiver that's missing the witnesses, the disclosure or the right words can fail, and the home then passes under §732.401.

What the rule doesn't decide

Whether a property is homestead at all. Within a city, the constitutional homestead covers up to one-half acre of contiguous land; outside a city, up to 160 acres. It applies to property owned by a natural person that's the residence of the owner or the owner's family (Art. X, §4(a)). Second homes and rental property usually raise different questions.
Creditor protection at death. Under §4(b), the forced-sale exemption passes to the surviving spouse or heirs. That's a separate question from who inherits.
Taxes. Estate, gift and property-tax effects depend on your situation.

Questions to ask your lawyer

Is my home "homestead" for devise purposes, and how is it titled?
With my family as it is today, who can I leave it to?
Do we have a valid prenup, postnup or deed waiver, and does it cover homestead?
If my spouse would get a life estate, would the one-half election be better for them?
Would a lifetime transfer or a change in title make sense for us?

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Related questions

FAQ

Can I leave my Florida house to my children instead of my spouse?
Not by will or trust if your spouse survives you, unless your spouse validly waived homestead rights. If you try, the gift fails, and your spouse generally gets a life estate (or can elect a one-half interest) with your descendants taking the rest.

Can I leave my homestead to my spouse if I have a minor child?
No. If a minor child survives you, the homestead can't be devised at all, even to your spouse. It passes under §732.401.

Does putting my home in a revocable trust avoid the homestead rules?
No. Florida treats a disposition by a revocable trust as a devise for this rule (§732.4015(2)).

How long does a surviving spouse have to choose the one-half interest?
Six months after the death. The spouse must record a notice of election in the county where the home is, and the choice is irrevocable.

Can my spouse waive homestead rights?
Yes. By a written agreement signed before two witnesses (with fair disclosure if signed after marriage) under §732.702, or by joining a deed with the waiver language in §732.7025.

Does the deed waiver give up creditor protection?
No. §732.7025 says the deed waiver isn't a waiver of protection against the owner's creditors, during life or after death.

What if I'm not married and my children are adults?
The devise restriction doesn't apply. You can leave the homestead to anyone in your will or trust.

Sources

Florida Constitution, Art. X, §4, Homestead; exemptions (flsenate.gov), fetched Oct. 31, 2026
Fla. Stat. §732.4015, Devise of homestead (2026 Florida Statutes, flsenate.gov), fetched Oct. 31, 2026
Fla. Stat. §732.401, Descent of homestead (2026), fetched Oct. 31, 2026
Fla. Stat. §732.4017, Inter vivos transfer of homestead property (2026), fetched Oct. 31, 2026
Fla. Stat. §732.702, Waiver of spousal rights (2026), fetched Oct. 31, 2026
Fla. Stat. §732.7025, Waiver of homestead rights through deed (2026), fetched Oct. 31, 2026
Fla. Stat. §689.11, Conveyances between spouses (2026), fetched Oct. 31, 2026
Fla. Stat. §731.201(10) and (33), Definitions ("devise," "protected homestead") (2026), fetched Oct. 31, 2026
Fla. Stat. §732.102, Spouse's share of intestate estate (2025 Florida Statutes), fetched Oct. 31, 2026
Fla. Stat. §743.07, Rights of persons 18 years of age or older (2026), fetched Oct. 31, 2026

*This information is general and isn't legal or tax advice. It doesn't create an attorney-client relationship. Talk to a lawyer about your situation.*

Sources

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