Last updated September 27, 2026
Homestead Property in a Florida Probate: Why the House Is Different
Short answer: In Florida a decedent's protected homestead is not an asset of the probate estate. It passes directly to the surviving spouse or heirs under Article X, section 4 of the Florida Constitution and section 732.401, Florida Statutes; the personal representative controls every other property but not this one (sections 733.607 and 733.608). That is why the heirs, not the personal representative, sign the listing and the deed, why a title company wants an order determining homestead first, and why a surviving spouse has a six-month election that changes who owns what.
Key takeaways
- Protected homestead is carved out of the personal representative's powers by statute; it is listed on the inventory but not valued or administered as an estate asset.
- Spouse plus descendants: the spouse takes a life estate with remainder to the descendants, or elects within six months to take an undivided one-half as tenant in common (section 732.401).
- The homestead cannot be devised away from a surviving spouse or minor child (section 732.4015); a devise that breaks the rule fails and the property descends as if intestate.
- The order determining homestead (Fla. Prob. R. 5.405) is what a title insurer relies on to know who can sign and that estate creditors cannot reach the house.
- Every owner who took title at death signs the listing and the deed; signatures, not the court, are usually the critical path.
Informational purposes only. This is not legal advice and no attorney-client relationship is created by reading it. PBP Real Estate, LLC is a licensed Florida real estate brokerage (License CQ1064615), not a law firm. Whether a property is protected homestead, and who takes it, are legal determinations for the estate's attorney and the court.
Why is homestead treated differently from every other estate asset?
Florida's homestead is three protections in one constitutional section. Article X, section 4(a) exempts the home from forced sale by most creditors during the owner's life; section 4(b) says that exemption inures to the surviving spouse or heirs at death; and section 4(c) restricts how the owner may give it away in a will. The Probate Code then builds on that: section 733.608(1) makes every piece of the decedent's real property except the protected homestead an asset in the personal representative's hands, and section 733.607(1) gives the personal representative possession and control of everything except protected homestead.
The result is a house that sits inside the family's probate but outside the personal representative's authority. Florida Probate Rule 5.340 requires it to be listed and designated on the inventory, but not valued as part of the estate. For a family trying to sell, that single distinction decides who can sign, whether creditors are paid from the price, and how long the sale takes.
Who owns the homestead after death?
| Family at death | Can it be devised by will? | If not devised, who takes it (s. 732.401) |
|---|---|---|
| Surviving spouse and descendants | Only to the spouse, and only if no minor child (s. 732.4015) | Spouse: life estate; descendants in being at death: vested remainder, per stirpes. Or, if the spouse elects within six months, spouse one-half and descendants one-half as tenants in common |
| Surviving spouse, no descendants | To the spouse | Spouse takes the homestead as other intestate property |
| Minor child, no spouse | No | Descends as intestate property to the descendants |
| No spouse, no minor child | Yes, to anyone | If not devised, descends as intestate property |
The table is the starting point, not the answer. Whether someone counts as a "spouse" after a separation, whether a child is a "minor" at the date of death, whether a devise to a trust counts (section 732.4015(2) says it does), and whether a property that was rented out or split into a duplex still qualifies are all questions with case law behind them. The estate's attorney answers them; the title insurer will want the court's order before relying on the answer.
What is the surviving spouse's six-month election?
When a spouse and descendants survive and the homestead was not validly devised, the default under section 732.401(1) is a life estate for the spouse with a vested remainder to the descendants. A life estate is difficult to sell: the spouse can convey only a life interest, so a sale at full value needs every remainderman to join in the deed. Section 732.401(2) gives the spouse an alternative: elect to take an undivided one-half interest as tenant in common, with the other half vesting in the descendants.
- The election must be made within six months after the death and during the spouse's lifetime. The time cannot be extended except where an attorney in fact or guardian has timely petitioned the court.
- It is made by recording a notice of election containing the legal description in the official records of the county where the homestead sits.
- Once made, it is irrevocable.
For a family that intends to sell, the election converts a life-estate-and-remainder structure into a straightforward co-ownership, which is far simpler to price, contract and close. For a spouse who intends to stay, the life estate is usually the better protection. The choice has to be made before the deadline passes, and the property's current market value is one of the facts the spouse's attorney will want in hand before advising. We prepare that figure by hand from current BeachesMLS sales whenever an attorney asks for it inside the six-month window.
Why does the title company want an order determining homestead?
The order determining homestead status of real property is the court's finding of two things: that the property was the decedent's protected homestead, and who took title to it at death. Petitions to determine protected homestead real property are governed by Florida Probate Rule 5.405 and are filed by the estate's attorney, normally early in the administration.
Without that order, a buyer's title insurer is being asked to insure a deed from people whose ownership rests on a legal conclusion nobody has tested. With it, the insurer knows the sellers are the right sellers and that an estate creditor cannot later assert a claim against the house. In Palm Beach and Broward we do not take a homestead listing to contract without either the order in hand or the attorney's written confirmation of when it will be entered, because a closing date that depends on an unfiled petition is not a closing date.
What can the personal representative do with the homestead in the meantime?
Very little, and only to protect it. Section 733.608(2) authorizes, but does not require, the personal representative to take possession of property that reasonably appears to be protected homestead when nobody with an interest in it is living there, for the limited purpose of preserving, insuring and protecting it pending the homestead determination. The personal representative may collect rents for the account of the heir or devisee but has no duty to rent the property out, and under section 733.608(3) is entitled to a lien on the property for the funds spent.
In practice this is the authority under which an empty South Florida house gets its insurance kept in force, its locks changed, its lawn cut so the city does not lien it, and its shutters put up in September. Section 733.617(3)(e) also lists "dealing with protected homestead" among the extraordinary services for which a personal representative may be compensated beyond the standard commission.
Who signs the listing agreement and the deed?
The owners who took title at death, and all of them. That is the operational difference from every other estate sale, where a single personal representative signs under a power of sale or a court order (see the personal representative's guide to selling).
| Structure | Who must sign | Typical complication |
|---|---|---|
| Spouse life estate, descendants remainder | Spouse and every remainderman (and their spouses where the remainderman's own homestead rules require joinder) | One remainderman in another state or unwilling; a minor remainderman needs a guardian |
| Spouse one-half election | Spouse and every descendant holding a share | Per stirpes shares to grandchildren of a predeceased child |
| No spouse, no minor child; devised or intestate | Every devisee or heir | Heirs who disagree about selling at all: see when heirs disagree |
| Homestead held in a revocable trust | The successor trustee, subject to the same devise restrictions (s. 732.4015(2)) | Confirming the deed into trust was actually recorded: see selling a house in a living trust |
We require every owner to sign the listing agreement before the property is entered in BeachesMLS, and we confirm the signing list against the order determining homestead, not against the family's own description of who inherits. The two do not always match.
Do creditors get paid from the sale?
Unsecured creditors of the decedent generally do not: the constitutional exemption inures to the spouse or heirs under Article X, section 4(b), and the proceeds of a protected homestead are not estate assets for paying claims. Secured obligations are unaffected. The mortgage is paid off at closing, property taxes are prorated and paid, the condominium or homeowners' association estoppel is satisfied, and any recorded lien against the house is cleared. Whether the protection survives when the homestead passes to someone outside the constitutional class of "heirs" is a question the courts have answered differently on different facts, and it is for the estate's attorney.
What about the property tax exemption?
The decedent's homestead exemption and the 3% Save Our Homes assessment cap are tied to the decedent's ownership. On the January 1 following a change of ownership the county property appraiser reassesses at market value unless a new owner has qualified and applied for an exemption. Two practical consequences: an heir who intends to live in the house should ask the property appraiser about filing before March 1 of the following year, and a family that intends to sell should understand that the buyer's tax bill will be based on the sale price, which buyers in Palm Beach and Broward now routinely calculate before making an offer.
Where we fit
We are not lawyers and we do not decide what is homestead. What we do is the property: a written opinion of value as of the date of death and as of today, prepared by hand from BeachesMLS sales, for the attorney advising on the six-month election or the inventory; preparation, insurance and hurricane readiness during the determination; a signing list reconciled to the court's order; and a sale timed so that the closing waits for nothing. If a family does not yet have a probate attorney, we can refer several who handle Palm Beach and Broward estates regularly.
Related
- Stepped-up basis: what the heirs owe in tax when they sell
- Selling an inherited condominium: assessments, estoppel and the association
- Probate real estate in South Florida — the full guide for executors and personal representatives
- Personal representative's guide to selling a house in Florida probate
- When heirs disagree about selling an inherited house
- Selling a house held in a living trust
- Do I qualify for summary administration? — homestead is outside the $150,000 test
- How long probate takes in Palm Beach County
- Date-of-death home value for the inventory
See what the property is worth
The six-month election, the inventory and the decision to sell or keep all turn on one number. Gia Freer, our Broker of Record, prepares a written opinion of value from our own BeachesMLS data. No automated estimate is published on this site and no price here is produced by software.
Homestead in probate: questions and answers
Is the homestead part of the probate estate in Florida?
Protected homestead is not. Section 733.608(1), Florida Statutes, makes all of the decedent's real property except the protected homestead an asset in the personal representative's hands, and section 733.607 gives the personal representative possession and control of everything except protected homestead. The house passes directly to the surviving spouse or heirs under Article X, section 4 of the Florida Constitution and section 732.401, and the personal representative does not sell it.
Who inherits a Florida homestead when there is a surviving spouse and children?
If the homestead was not validly devised, section 732.401(1) gives the surviving spouse a life estate with a vested remainder to the decedent's descendants in being at death, per stirpes. Alternatively, under section 732.401(2) the spouse may elect within six months of the death to take an undivided one-half interest as tenant in common, with the other half vesting in the descendants. The election is recorded, is irrevocable, and cannot be made after the six months run.
Can a Florida homestead be left to someone in a will?
Only in limited cases. Under Article X, section 4(c) and section 732.4015, the homestead cannot be devised if the owner is survived by a spouse or a minor child, except that it may be devised to the spouse when there is no minor child. If there is no surviving spouse and no minor child, the owner may devise it freely. A devise that violates the rule fails, and the property descends under section 732.401 as if there had been no will.
Why does the title company want an order determining homestead?
Because the order is the court's determination of who took title at death and whether the property is protected from estate creditors. Without it a buyer's title insurer has no court finding that the heirs signing the deed are the right people, or that an estate creditor cannot later reach the property. Petitions to determine protected homestead real property are governed by Florida Probate Rule 5.405; the estate's attorney files it, usually early in the administration.
Can the personal representative do anything with the homestead before that determination?
Section 733.608(2) allows, but does not require, the personal representative to take possession of property that reasonably appears to be protected homestead if no one with an interest in it is living there, for the limited purpose of preserving, insuring and protecting it. The personal representative has no duty to rent it out and acquires a lien for the money spent under section 733.608(3). That is the authority under which an empty house is insured, secured and hurricane-prepared while the homestead question is decided.
Who signs the listing agreement and deed for a homestead sale?
The people who took title at death, all of them, as owners. With a life estate that means the surviving spouse and every remainderman; with a one-half election it means the spouse and every descendant holding a share; with no spouse or minor child it means the devisees or heirs. The personal representative does not sign for the homestead. Gathering those signatures across states is normally the longest lead item in a homestead sale.
Do estate creditors get paid from a homestead sale?
As a general rule, protected homestead and its proceeds are exempt from the decedent's unsecured creditors under Article X, section 4(b). Secured debt is different: the mortgage, property taxes, association assessments and recorded liens against the house still have to be paid at closing. Whether a particular property keeps its protected status after death depends on who receives it, which is a legal determination for the estate's attorney and the court.
What happens to the property tax exemption and the Save Our Homes cap?
The decedent's homestead exemption and the 3% Save Our Homes assessment cap belong to the decedent's ownership. After a change of ownership the property is reassessed at market value on the following January 1 unless a new owner qualifies and applies for their own exemption. An heir who moves in should speak to the county property appraiser about filing by the March 1 deadline; an heir who plans to sell should budget for the buyer's higher tax bill, because buyers do.
Sources and legal references
This page summarizes Florida law and court procedure for property owners. The primary sources are below; for your own estate, rely on a Florida-licensed probate attorney.
- Chapter 732, Florida Statutes: Probate Code; Intestate Succession and Wills — Florida Legislature (Online Sunshine)
- Chapter 733, Florida Statutes: Probate Code; Administration of Estates — Florida Legislature (Online Sunshine)
- Section 733.613, Florida Statutes: Personal representative's right to sell real property — Florida Legislature (Online Sunshine)
- Section 735.201, Florida Statutes: Summary administration; nature of proceedings — Florida Legislature (Online Sunshine)
- Section 732.401, Florida Statutes: Descent of homestead — Florida Legislature (Online Sunshine)
- Section 733.702, Florida Statutes: Limitations on presentation of claims — Florida Legislature (Online Sunshine)
- Florida Probate Rules (Florida Rules of Court Procedure) — The Florida Bar
- 26 U.S. Code Section 1014: Basis of property acquired from a decedent — Legal Information Institute, Cornell Law School
- Publication 559, Survivors, Executors, and Administrators — Internal Revenue Service
- Property tax exemptions, including homestead — Florida Department of Revenue
- Probate Division, Fifteenth Judicial Circuit (Palm Beach County) — Fifteenth Judicial Circuit of Florida
Families we have helped through an estate sale
PBP Real Estate holds 86 Google reviews at an average of 5.0 out of 5. Every quote below is a verbatim excerpt from a public review on that profile, shortened only where marked.
Gia and John from PBP Real Estate exceeded expectations in selling my mother's Delray Beach condo, which had previously failed to sell with another firm. Despite being in New York, I experienced excellent communication and responsiveness via phone, text, and email, making the remote process, including the closing, stress-free.
★★★★★ Robert S. · Google review, December 2024
I needed to sell my mothers home from out of state and Gia made the whole process very easy. She helped me getting the right people to get the house emptied and cleaned.
★★★★★ Roger D. · Google review, December 2024
We live in Ohio and had to sell a home in South Florida that needed a lot of work. She is extremely knowledgable and very helpful when it came to what should be done and what could be left alone to get us the most profit. Gia has a large network of reliable contractors.
★★★★★ A Google reviewer · Google review, April 2020
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