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Florida Homestead Property Attorney
Dutton & Salta represents individuals, families, and heirs in homestead property matters throughout Florida. Based in Tampa, our attorneys help clients address homestead status, inheritance issues, creditor protections, and related probate matters.
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Homestead Property in Florida
When an individual passes away, one of the most significant assets is often the home. Understandably, families have questions about what happens to the property, whether it must go through probate, and whether creditors can make claims against it.
Florida homestead protections come from several sources, including the Florida Constitution, Florida statutes, and court decisions interpreting those laws. Together, these protections can affect who inherits homestead property, whether it is subject to creditor claims, and how the property is treated during probate.
What Is Homestead Property Under Florida Law?
Under Florida law, homestead property generally refers to a person’s primary residence, the place where the individual lives with the intent to make it their permanent home. Whether property qualifies as homestead can significantly affect inheritance rights, creditor protections, and how the property is treated after the owner’s death.
Florida homestead law provides several distinct protections, including property tax benefits, protection from most creditor claims, and restrictions on how the property may pass at death.
Property Tax Exemption
Florida residents may apply for a homestead property tax exemption on their primary residence, which can reduce the property’s taxable value. Homestead property also receives additional protection through the Save Our Homes assessment cap, which limits how quickly the property’s assessed value can increase from year to year.
Creditor Protection
Florida homestead property is generally protected from forced sale by most judgment creditors. Unsecured creditors, such as credit card companies or medical debt collectors, generally cannot force the sale of protected homestead to satisfy a judgment. Certain obligations tied directly to the property, including mortgages, property taxes, and qualifying liens for improvements or repairs, are exceptions to this protection.
Descent Restrictions
Florida law also restricts how homestead property may be devised when the homeowner is survived by a spouse or minor child. These restrictions are intended to protect surviving family members and may control how the property passes even when a will or trust provides otherwise. A surviving spouse may waive certain homestead rights, including through a valid prenuptial or postnuptial agreement.
Related Practice Areas
Common Homestead Property Scenarios
A Surviving Spouse Wants to Stay in the Home
When one spouse dies and leaves behind homestead property, Florida law gives the surviving spouse the right to remain in the home rather than being displaced by children from a prior relationship or other heirs. Depending on the family structure, the surviving spouse may hold a life estate in the home, with any children or other descendants holding the remainder interest, or instead, the surviving spouse may elect to take an undivided one-half interest in the property.
Heirs Disagree About What to Do With an Inherited Home
It’s common for siblings or other co-heirs to inherit homestead property together and disagree about what happens next. One heir may want to move in or keep the property in the family, while another wants to sell and receive their share of the proceeds. When co-owners can’t reach an agreement, a partition action may be the only way to force a sale or divide the property.
A Blended Family or Minor Children Are Involved
Florida homestead law can create unique issues in blended families because a surviving spouse and children from a prior relationship may have competing interests in the same home. If the owner is survived by a spouse or minor child, Florida law may restrict how the homestead can be devised by will or trust, and those restrictions can control even when the estate plan says otherwise.
The Home Is Held in a Trust
Placing a Florida homestead in a trust does not necessarily eliminate its homestead protections or restrictions. Depending on the type of trust and the rights retained by the homeowner, the property may still receive homestead treatment, while Florida’s devise restrictions can continue to apply. For that reason, the trust terms, title to the property, and family circumstances should be reviewed together.
How Homestead Status Is Determined
Florida Probate Rule 5.405 governs the procedure for asking the probate court to determine whether a decedent’s real property qualifies as protected homestead. Amendments effective October 1, 2025, require additional information about the decedent’s family circumstances, including whether the decedent died testate or intestate and, when applicable, how a surviving spouse waived homestead rights.
Step 1: File a Petition to Determine Homestead Status
The process begins when a personal representative or other interested person, such as a surviving spouse or heir, files a verified petition with the probate court. The petition must state where the decedent was domiciled, whether they died testate or intestate, and the relevant family circumstances, including any surviving spouse’s waiver of homestead rights. It also needs to describe how title to the property was held, include a legal description of the property, and set out the facts supporting the homestead claim.
Step 2: Provide Formal Notice
The petition must be served by formal notice on interested persons whose rights may be affected by the homestead determination. This gives those parties an opportunity to respond to or contest the requested determination.
Step 3: Resolve Any Disputes
If the petition is contested or the court requires additional evidence, the parties may need to address disputed issues concerning the property’s homestead status or who is entitled to the property.
Step 4: Obtain the Homestead Order
The court ultimately enters an order determining whether the property constituted protected homestead. If it did, the order identifies the persons entitled to the property and the nature of each person’s interest in it.
Possible Outcomes: How Homestead Property Passes to Heirs
Florida law places specific limits on how homestead property may be devised and inherited, and those limits shift depending on the makeup of the decedent’s family at the time of death. Whether the decedent left a surviving spouse, descendants, or minor children can affect who is entitled to the homestead and whether it can be devised by will at all. The scenarios below describe the general rules, but the actual outcome depends on the specific facts.
Surviving Spouse and Descendants
If a homeowner is survived by a spouse and one or more descendants, but no minor children, Florida law allows the homestead to be devised solely to the surviving spouse. When the property is not validly devised to the spouse, whether because there was no will or the devise was invalid, the property descends under Florida Statute 732.401. The surviving spouse receives a life estate and the descendants receive the remainder interest. Instead of the life estate, the surviving spouse may elect within six months of the decedent’s death to take an undivided one-half interest as a tenant in common with the descendants.
Surviving Spouse and Minor Children
When a homeowner is survived by a spouse and one or more minor children, Florida Statute 732.4015 prevents the homestead from being devised, even solely to the surviving spouse. The property instead descends under section 732.401, with the surviving spouse receiving a life estate and the decedent’s descendants receiving the remainder interest. The surviving spouse may also elect to take an undivided one-half interest as a tenant in common instead of the life estate.
Surviving Spouse, No Minor Children, and No Descendants
If a homeowner is survived by a spouse but leaves no descendants, the homestead may be devised to the surviving spouse. If the property is not devised, it generally passes to the surviving spouse under Florida’s intestate succession rules. A valid waiver of homestead or other spousal inheritance rights can change that result, depending on the scope and terms of the waiver.
No Surviving Spouse or Minor Children
If a homeowner has no surviving spouse and no minor children, Florida’s homestead devise restrictions do not prevent the owner from leaving the property to someone else. The homestead may be devised to an adult child, another family member, a friend, a charity, or another beneficiary. If there is no valid devise, the property passes under Florida’s intestate succession laws.
Creditor Protection for Homestead Property
One of the strongest features of Florida homestead law is its protection from creditor claims. Protected homestead property is generally exempt from forced sale by most creditors and is not ordinarily available to satisfy the decedent’s unsecured debts, even when the estate is insolvent.
There are important exceptions. Homestead property may still be subject to mortgages, property taxes and assessments, voluntary liens, and qualifying liens for labor or improvements made to the property.
Florida law also gives a personal representative limited authority to recover certain expenses incurred to preserve and maintain protected homestead during estate administration. Under § 733.608, Florida Statutes, the personal representative may assert a lien against the property to secure repayment of those expenses. That lien can affect the property or proceeds from a later sale, depending on the circumstances.
Florida Homestead Law and Courts
Governing Florida Homestead Law
Florida’s homestead protections come from several sources working together, including the Florida Constitution, the Florida Statutes, the Florida Probate Rules, and Florida case law. The constitutional foundation is Article X, Section 4, which protects homestead property from forced sale by most creditors, extends that protection to a surviving spouse or heirs after the owner’s death, and restricts how the property may be devised when the owner is survived by a spouse or minor child.
Property tax relief comes from a separate part of the constitution. Article VII, Section 4 limits how quickly the assessed value of homestead property can increase each year, generally capping the increase at the lower of 3% or the change in the Consumer Price Index for urban consumers. Section 196.031, Florida Statutes, provides the statutory exemption homeowners apply for, reducing part of the assessed value for most levies, with an additional exemption available on qualifying non-school property taxes.
When a homeowner dies, Sections 732.401 and 732.4015, Florida Statutes, work together to determine what happens to the homestead: one governs how it descends when it has not been validly devised, and the other restricts whether it can be devised at all when the owner is survived by a spouse or minor child. These statutes are discussed in more detail above.
When a personal representative has been appointed, Florida law gives that representative a limited role in protecting homestead property. Section 733.608, Florida Statutes, authorizes the personal representative to preserve and protect property that appears to be homestead and, in some circumstances, to secure repayment of expenses through a lien. Florida Probate Rules 5.402 through 5.404 address procedures involving the personal representative and protected homestead, while Rule 5.405 governs the proceeding used to determine protected homestead status.
Which Court Handles Florida Homestead Determinations?
Homestead determinations after a property owner’s death are generally handled as part of the probate proceeding in Florida circuit court. The court may be asked to determine whether the property qualified as protected homestead, who is entitled to receive it, and the nature of each person’s interest.
For estates administered in Hillsborough County, these matters proceed through the Circuit Court, with probate filings processed by the Hillsborough County Clerk’s Probate, Guardianship, and Trust Department.
Why Choose Dutton & Salta for Homestead Property Matters
At Dutton & Salta, homestead property matters are an important part of our real property and probate practice. Based in Tampa, we have represented surviving spouses, heirs, families, and property owners throughout Florida. We know every situation is unique and we take the time to understand the family structure, ownership history, estate planning documents, and your goals before recommending a strategy that protects your interests.
We understand that homestead matters often involve more than determining whether property qualifies as protected homestead. Issues involving surviving spouse rights, minor children, devise restrictions, trusts, creditor claims, and disagreements among heirs can significantly affect how the property passes after death. Our experience with these issues, combined with clear communication and practical guidance, helps clients make informed decisions and protect their interests throughout the process.
Robert Salta, founding partner, is admitted to the Florida Bar (Bar No. 1022665) and has practiced law in Florida since 2020. He is a member of the Hillsborough County Bar Association and its Real Property, Probate & Trust Law Section.
Corrie Dutton, founding partner, is admitted to the Florida Bar (Bar No. 1032315) and has practiced law since 2019, licensed in Florida since 2021. She is also a member of the Hillsborough County Bar Association and its Real Property, Probate & Trust Law Section.
Areas We Serve
Dutton & Salta is a Tampa-based law firm representing clients in homestead property matters throughout all 67 counties in Florida.
- Hillsborough County
- Orange County
- Pinellas County
- Manatee County
- Pasco County
- Sarasota County
- Polk County
- Miami-Dade County
Don’t see your county listed? We represent clients across the entire state of Florida. Contact us to discuss your case.
Frequently Asked Questions About Homestead Property in Florida
Does Homestead Property Go Through Probate in Florida?
Protected homestead is generally not treated like an ordinary probate asset available to pay the decedent’s debts and expenses. However, a probate proceeding is often used to obtain a court order determining that the property was protected homestead and identifying the people entitled to receive it.
Can I Lose My Home’s Homestead Protection if I Have Debts?
Ordinary unsecured debts generally do not subject protected homestead property to forced sale. Florida’s Constitution contains exceptions for taxes and assessments, obligations related to the purchase, improvement, or repair of the property, and labor performed on the property, and Florida law also permits certain liens for expenses incurred by a personal representative to preserve protected homestead after death.
What Happens to Homestead Property if There Is No Will?
If there is no will, homestead property passes according to Florida’s rules governing descent and intestate succession. When the decedent leaves a surviving spouse and descendants, special homestead rules generally provide the spouse with a life estate and the descendants with the remainder, although the spouse may elect an undivided one-half interest instead.
Can Homestead Property Be Held in a Trust and Keep Its Protections?
Yes, homestead property can be held through certain trusts without necessarily losing its homestead protections. However, placing the property in a trust does not automatically avoid Florida’s restrictions on how homestead may pass at death, and the result can depend on the type and terms of the trust.
What if My Siblings and I Inherit a Home and Disagree About Selling It?
If siblings inherit a home as co-owners, they may try to resolve the disagreement through a sale, buyout, or other agreement. If they cannot agree, a co-owner may file a partition action asking the court to resolve the parties’ ownership interests and, when appropriate, divide or sell the property.
Do I Need a Lawyer to File a Petition to Determine Homestead Status?
Not necessarily. Florida Probate Rule 5.405 allows an interested person to file a petition to determine protected homestead status, although probate representation requirements and the complexity of homestead issues may make attorney involvement appropriate, particularly when the petition is contested or involves a surviving spouse, minor children, or a trust.
Sources: Article X, Section 4, Florida Constitution — Homestead; Exemptions, Article VII, Section 4, Florida Constitution — Taxation; Assessments, § 196.031, Florida Statutes — Exemption of Homesteads, § 732.401, Florida Statutes — Descent of Homestead, § 732.4015, Florida Statutes — Devise of Homestead, § 733.608, Florida Statutes — General Power of the Personal Representative, Florida Probate Rules 5.402–5.405 — Protected Homestead Proceedings, Hillsborough County Clerk — Probate, Guardianship, and Trust
Attorney Review: Robert Salta, Florida Bar No. 1022665
Last Reviewed: 08/27/26