What counts as homestead at death
Under Article X, § 4 of the Florida Constitution, a person’s homestead is the residence they owned and lived in — up to half an acre inside a municipality, or 160 acres outside one. It doesn’t matter whether the property-tax homestead exemption was ever filed; what matters is that the owner lived there as their permanent home. (Note that this constitutional homestead is a different thing from the Save Our Homes tax cap, which is covered in taxes on an inherited house.)
Who gets the homestead
If the owner left a spouse or minor child, the homestead cannot be left to anyone else by will (§ 732.4015) — the only permitted devise is to the spouse, and only when there is no minor child. Otherwise it passes by law (§ 732.401): if there are no descendants, the surviving spouse takes the homestead outright; if there are, the spouse takes a life estate with the remainder going to the owner’s descendants, or may elect, within six months of death, to take an undivided one-half interest as tenant in common with the descendants taking the other half.
If there is no spouse or minor child, the owner can leave the homestead to whomever they like in a will. If there is no will, it passes to the heirs under intestate succession — usually the children in equal shares.
What “protected homestead” means for creditors and Medicaid
Homestead that passes to a spouse or heirs is not part of the probate estate available to pay the deceased person’s creditors (Art. X, § 4(b), Fla. Const.; § 733.608). That is a real benefit: credit-card companies, medical providers, and Florida’s Medicaid estate recovery program (§ 409.9101(7)) cannot reach it. The exceptions are the liens that attach to the house itself — a mortgage, property taxes, a contractor’s lien, an association lien — which still have to be paid when the house sells. One caution: the protection follows the heirs. If a will leaves the homestead to someone who is not an heir (a friend, say), or directs that it be sold and the money split, it becomes an ordinary estate asset that creditors can reach.
Short version: if you want the house sold, we pay for the probate and get the attorney working within 24 hours — call or text (727) 353-6206, or use the form.
The order determining homestead
Because protected homestead passes outside the estate, the personal representative generally does not control it and can’t sign a deed for it. Title companies therefore require a petition and order determining homestead status from the probate court, which confirms the house was homestead and names who received it. The heirs named in that order sign the deed. The petition is routine, is filed in the same case as the rest of the probate (or as a stand-alone proceeding), and is part of what we pay for.
Selling an inherited homestead
- Every heir signs. There is no personal representative power of sale over protected homestead. That is why one missing or reluctant heir matters so much here, and why we work with each heir individually — and will buy individual shares if the family can’t all agree. See selling your share.
- A surviving spouse with a life estate and the remaindermen (the children) all sign together to sell the whole house; the proceeds are split between the life estate and the remainder by actuarial tables. We can buy the life estate and the remainder interests together or separately.
- The clock. The spouse’s election to take a half interest must be filed within six months of death (§ 732.401(2)). Missing it leaves the spouse with the life estate.
A warning about property taxes
The deceased owner’s homestead tax exemption and Save Our Homes cap end with the year of death. Unless an exception applies — a surviving spouse who keeps living there, for example — the assessed value resets to market value as of the next January 1 and the tax bill can jump dramatically; an heir who moves in and files for a new exemption starts a fresh cap from that higher number. If the house is going to be sold anyway, that is one more reason not to let it sit through another January 1.
Questions people ask
Does a homestead go through probate in Florida?
Protected homestead passes outside the probate estate to the spouse or heirs, but a court order determining homestead is still almost always needed to clear title before it can be sold. That order is obtained in the probate case.
Can the personal representative sell the homestead?
Generally no. Protected homestead belongs to the heirs directly, so the heirs themselves sign the deed after the court determines homestead status. All heirs must sign to sell the whole house.
Can creditors take an inherited homestead in Florida?
Unsecured creditors of the person who died — including, in most cases, Medicaid estate recovery — cannot reach protected homestead. Mortgages, property taxes, and liens recorded against the house itself still must be paid when it sells.
What happens to my stepmother’s life estate if we want to sell?
She and the children (the remaindermen) all sign; the sale proceeds are divided between the life estate and the remainder using actuarial tables based on her age. We buy both interests, together or separately.