Homestead Property and Florida Probate: What Happens Without a Will

In Florida, homestead property is the deceased person’s primary residence, and it is treated very differently from almost everything else in a probate estate. Homestead passes to a narrow class of heirs under the Florida Constitution and statute, it is generally shielded from the decedent’s creditors, and when there is no will the law dictates exactly who inherits it. Understanding those rules is the difference between keeping the family home and losing it.

If you are administering the estate of a Palm Beach County resident who died without a will, the homestead is almost always the largest and most legally complicated asset you will touch. This guide explains how homestead property works in Florida probate, with particular attention to intestate estates, where the constitution, not the decedent’s wishes, controls the outcome.

What “Homestead” Means in a Florida Probate

The word “homestead” gets used three different ways in Florida law, and conflating them causes real trouble. There is the property-tax homestead exemption, the homestead protection from creditors, and the homestead restriction on transfer at death. They overlap but are not identical. In a probate, the two that matter most are creditor protection and the descent-and-devise restrictions.

Homestead protection comes from Article X, Section 4 of the Florida Constitution. To qualify, the property must be the decedent’s primary residence, owned by a natural person (not a corporation or, in most cases, certain irrevocable trusts), and within the size limits: up to one half-acre inside a municipality, or up to 160 acres outside one. Most Palm Beach County homes, condos, and townhomes sit comfortably inside the municipal half-acre limit.

The constitutional protection is generous, but it is also rigid. Because it is rooted in public policy that protects families, the decedent cannot simply override it with a will, and the heirs cannot easily contract around it.

Why Homestead Status Is Decided Property by Property

Homestead is not a label the family chooses; it is a legal status the court determines based on the facts at the date of death. A snowbird who split time between New York and a Boca Raton condo, a parent who moved into assisted living but never sold the house, a person who rented out half a duplex, each of these raises a factual question about whether the property qualified as homestead. Because the consequences are large, the personal representative typically asks the probate court to enter an order determining homestead status early in the case.

Homestead and Creditor Protection in Probate

One of the most powerful features of Florida homestead is that it generally passes to the heirs free of the decedent’s debts. Credit card balances, medical bills, and unsecured loans cannot reach a properly qualified homestead, and that protection carries through probate to the heirs who inherit it. This is why homestead is sometimes described as passing “outside” the probate estate even though it usually still requires a court order.

There are important exceptions. The constitution does not protect homestead from three categories of debt:

• Property taxes and assessments on the home itself.
• Mortgages and other voluntary liens the owner placed on the property.
• Liens for labor or materials used to improve the property (mechanic’s and construction liens).

So the protection shields the home from the decedent’s general creditors, but it does not erase the mortgage. Heirs who inherit a homestead with a balance still owing take it subject to that loan. A common and painful surprise in intestate estates is discovering that the protected home comes with a reverse mortgage, a home equity line, or back taxes that must be addressed before anyone can sell or refinance.

Descent of Homestead When There Is No Will

This is the heart of the matter for an intestate estate. When a Florida resident dies without a will, the homestead does not pass under the ordinary intestate-succession rules that govern bank accounts and cars. It passes under a separate provision, Florida Statute Section 732.401, which controls the descent of homestead.

Surviving Spouse and Descendants

If the decedent is survived by both a spouse and one or more descendants, the default rule under Section 732.401(1) gives the surviving spouse a life estate in the homestead, with a vested remainder to the descendants who are living at the time of death, per stirpes. In plain terms, the spouse has the right to live in the home for the rest of their life, and when the spouse dies the home belongs to the children (or their lines of descent).

A life estate sounds tidy on paper but often satisfies no one. The surviving spouse must keep paying taxes, insurance, and upkeep, yet cannot sell the property without the remaindermen joining in. The children own a future interest they cannot use or borrow against. Recognizing this friction, the legislature added an alternative.

Under Section 732.401(2), the surviving spouse may instead elect to take an undivided one-half interest in the homestead as a tenant in common, with the other half passing to the descendants per stirpes. This election must be made within six months of the decedent’s death and recorded, so it is time-sensitive. The half-interest option is frequently better because it lets the spouse force a sale (through a partition action if necessary) and cash out, rather than being locked into a property they cannot afford to maintain. Choosing between a life estate and the half-interest election is a genuine legal-and-financial decision that deserves careful analysis, ideally before the six-month window closes.

Surviving Spouse, No Descendants

If the decedent leaves a spouse but no descendants, the homestead passes outright to the surviving spouse in fee simple. This is the cleanest outcome and the one most people assume happens in every case, which is exactly why the more common spouse-plus-children scenario catches families off guard.

No Spouse

If there is no surviving spouse, the homestead descends to the decedent’s heirs under the regular rules of intestate succession in Chapter 732, typically the children in equal shares. Because there is no spouse and no protected minor child blocking the transfer, the descent is more straightforward, though the heirs still inherit subject to any mortgage and to the home’s status as protected homestead.

The Devise Restriction: Why a Will Would Not Always Fix This

People often assume that the no-will problem could have been avoided simply by writing one. Sometimes, but not always. Even with a will, Florida law restricts who can receive homestead. Under Article X, Section 4(c) of the constitution and Florida Statute Section 732.4015, homestead may not be devised at all if the owner is survived by a spouse or a minor child, with one exception: the owner may devise the homestead to the spouse if there is no minor child.

The presence of a minor child is the hard stop. If the decedent had a minor child at death, the homestead cannot be left to anyone outside the protected class, period, no matter what a will says. An attempted devise that violates this rule is void, and the property instead descends under Section 732.401 as if there were no will at all. So in many family situations, an intestate homestead and a homestead disposed of by a noncompliant will reach the same place. This is one reason homestead planning in Florida is its own specialty, separate from drafting an ordinary last will and testament.

How Homestead Moves Through the Probate Process

Even though protected homestead is not a probate asset in the usual sense, the family almost always needs the probate court to confirm its character. The typical sequence in a Palm Beach County intestate estate looks like this:

1. The personal representative opens the estate and identifies the residence as potential homestead.
2. A petition to determine homestead status is filed, naming all interested parties.
3. The court enters an order declaring the property protected homestead and identifying who takes it under Section 732.401.
4. If a surviving spouse intends to make the half-interest election, it is recorded within the six-month deadline.
5. The order is recorded in the public records, clearing title so the property can be sold, refinanced, or retained.

Without that order, title companies generally will not insure a sale, because the chain of title is unclear. The order determining homestead is the document that turns a constitutional protection into marketable title.

Common Traps in Intestate Homestead Cases

A few recurring problems deserve special mention, because they surface again and again in no-will estates:

• Blended families. A second spouse and children from a first marriage are the classic conflict. The spouse wants to stay; the children want the equity. The life-estate-versus-election decision becomes a negotiation, and sometimes litigation.
• The forgotten minor child. A minor child, even one not living in the home, can void an otherwise sensible plan and force descent under the statute.
• Joint ownership confusion. Property held as tenants by the entireties or with rights of survivorship passes automatically and may never become a homestead issue, but families often misremember how title was held.
• Out-of-state heirs. When some descendants live elsewhere, coordinating consents, elections, and a possible sale takes longer and requires careful documentation.

Disputes over homestead descent, valuation, or the validity of an attempted transfer can escalate into full , which is far costlier than resolving the questions early. The same dynamics that drive homestead fights in Florida appear in other states’ probate systems; for a comparative look at how a different jurisdiction structures its process, Morgan Legal’s overview of the is a useful reference point on why local rules matter so much.

Why Local Counsel Matters

Homestead law sits at the intersection of the Florida Constitution, the Probate Code, county recording practices, and title-insurance requirements. The statutes are short; the case law interpreting them is not. An experienced probate attorney can determine homestead status, advise the surviving spouse on the election deadline, clear title for sale, and head off disputes among heirs before they harden.

If you are handling a Palm Beach estate, our office can guide you through the determination of homestead and the descent rules step by step. For families with ties to other Morgan Legal offices, the firm’s can coordinate across jurisdictions. When you are ready to discuss a specific property, reach out to schedule a consultation so the six-month deadlines and title issues are handled correctly from the start.

Frequently Asked Questions

Does homestead property go through probate in Florida?

Protected homestead is generally not a probate asset and passes free of most of the decedent’s debts, but the family almost always needs the probate court to enter an order determining homestead status. That order identifies the lawful heirs under Section 732.401 and clears title so the property can be sold or refinanced.

Who inherits the homestead if there is no will in Florida?

It depends on who survives. A spouse with no descendants takes the home outright. A spouse plus descendants gives the spouse a life estate with a remainder to the descendants, unless the spouse elects within six months to take a one-half tenant-in-common interest instead. With no spouse, the homestead descends to the descendants under Chapter 732.

Can creditors take a Florida homestead during probate?

Generally no. Florida’s constitutional homestead protection shields the home from the decedent’s general creditors and carries through to the heirs. The exceptions are property taxes and assessments, voluntary liens like a mortgage, and construction or mechanic’s liens for work on the property.

What is the surviving spouse's six-month homestead election?

Under Section 732.401(2), instead of taking a life estate, a surviving spouse may elect to receive an undivided one-half interest in the homestead as a tenant in common, with the other half going to the descendants. The election must be made and recorded within six months of death, so it is strictly time-sensitive.

Can a minor child stop the homestead from being left to someone else?

Yes. Under Article X, Section 4 of the Florida Constitution and Section 732.4015, if the owner is survived by a minor child the homestead cannot be devised to anyone outside the protected class. Any attempted devise is void, and the property instead descends under the statute as if there were no will.