Homestead property is the Florida primary residence that the state constitution shields from most creditors and restricts how an owner may give it away at death. In Florida probate, homestead is treated differently from every other asset: it generally passes outside the reach of estate creditors and, when the owner dies without a will, it descends to a narrow class of family members defined by statute rather than by the deceased’s wishes. Understanding that distinction is the single most important thing a Miami family can learn before they walk into the probate division of the Eleventh Judicial Circuit.
I have watched too many heirs assume that the family home is just another item on the estate inventory. It is not. The rules that govern it sit partly in the Florida Constitution, partly in the probate code, and partly in decades of appellate decisions. When there is no will to direct the outcome, those rules take over completely. This article walks through how that works, what surviving spouses and children should expect, and where the traps lie.
What “Homestead” Actually Means in Florida Probate
The word homestead carries three separate meanings in Florida law, and conflating them causes endless confusion. There is the homestead tax exemption you claim with the property appraiser, the homestead creditor protection in Article X, Section 4 of the Florida Constitution, and the homestead descent and devise restriction in Article X, Section 4(c). For probate purposes, the last two matter most.
To qualify as constitutional homestead, the property must be the owner’s permanent residence and fall within the size limits: up to one-half acre inside a municipality such as the City of Miami, or up to 160 contiguous acres outside one. A condominium unit in Brickell qualifies just as readily as a single-family house in Coral Gables, so long as it was the decedent’s primary home.
The protection is generous. With limited exceptions for property taxes, mortgages, mechanics’ liens, and a few others, homestead cannot be forced into sale to satisfy the decedent’s debts. That shield often survives death and passes to the heirs, which is why homestead frequently sidesteps the creditor claims process that consumes the rest of a probate estate.
Intestate Succession: Who Inherits the Home Without a Will
When a Miami resident dies without a valid will, Florida’s intestate succession statutes in Chapter 732, Florida Statutes decide who inherits. Homestead, however, follows its own descent rules layered on top of intestacy. The starting point is whether the decedent left a surviving spouse, minor children, or both.
Section 732.401 sets out the homestead-specific result. If the decedent is survived by a spouse and lineal descendants (children, grandchildren), the outcome under the default rule is a division between them. The historical default gave the spouse a life estate with a remainder to the descendants. Since 2010, the surviving spouse has an election: she may keep that life estate, or she may choose instead to take an undivided one-half interest as a tenant in common, with the descendants taking the other half.
That election must be made within six months of the decedent’s death and recorded, so it is time-sensitive and easy to miss. It exists because a life estate, while it sounds protective, can trap a surviving spouse: she becomes responsible for taxes, insurance, and upkeep but cannot sell the property outright without the remaindermen’s cooperation.
Common Intestate Scenarios for Homestead
- Spouse and no descendants. The surviving spouse generally takes the homestead outright in fee simple. The descent restriction does not bar a transfer to a spouse when there are no minor children.
- Spouse and descendants who are all also the spouse’s children. The spouse-and-descendants split under section 732.401 applies, with the elective half-interest available.
- Spouse and descendants from a prior relationship (blended family). Same statutory split, but these are the cases that most often head toward litigation because the stepchildren and the surviving spouse have divergent interests in the property.
- No spouse, only descendants. The home passes to the descendants per stirpes under the intestacy rules, free of the spousal restriction.
- Minor children involved. A critical wrinkle: the constitution forbids devising homestead at all if the owner is survived by a spouse or a minor child. With no will, intestacy controls, and the minor-child protection shapes the result heavily.
The Constitutional Devise Restriction
Article X, Section 4(c) of the Florida Constitution prohibits an owner from devising homestead if he is survived by a spouse or a minor child, with one narrow exception: he may leave it to the spouse alone if there is no minor child. This restriction is what defeats so many wills, but it matters in intestacy too because it confirms the protective priority Florida places on the surviving family.
The practical effect for a no-will estate is reassuring for the family living in the home. Even where creditors are circling the rest of the estate, the homestead typically lands in the hands of the spouse and children largely intact. In a true intestacy, where there was no devise to challenge, the statutory descent under section 732.401 simply governs, and the Miami probate court applies it.
How Homestead Moves Through a Miami Probate Case
Even though homestead passes outside the creditor process, title does not clear itself. The heirs almost always need the probate court in Miami-Dade County to enter an order confirming the property’s homestead character and identifying who now owns it. That order, recorded in the official records, is what lets the family sell, refinance, or insure cleanly.
- Open the estate. A petition for administration is filed in the Eleventh Judicial Circuit, and the court appoints a personal representative. With no will, the surviving spouse or a majority of heirs usually has priority to serve.
- Identify and describe the homestead. The personal representative files a petition to determine homestead status, attaching the legal description and evidence that the property was the decedent’s permanent residence.
- Give notice to interested persons. All heirs and any potential claimants receive notice and a chance to object.
- Obtain the order determining homestead. The judge enters an order finding the property is protected homestead and vesting title in the proper heirs under section 732.401.
- Record the order. Once recorded with the Miami-Dade Clerk, the order operates much like a deed, establishing marketable title.
Because the homestead is not a probate asset for creditor purposes, it is excluded from the elective-share and creditor-claim machinery in most cases. But the determination of homestead is itself a probate proceeding, which is why families cannot simply skip the courthouse.
Where Things Go Wrong
The most expensive disputes I see grow out of three recurring mistakes. First, families assume a deed they found in a drawer settled everything, when in fact the descent restriction overrode the decedent’s intent. Second, a surviving spouse lets the six-month window for the half-interest election lapse and is stuck with a life estate she did not want. Third, blended families clash over a home where the spouse wants to stay and the decedent’s children from a prior marriage want to sell.
These conflicts can escalate into partition actions or full-blown estate litigation. When that happens, the procedural posture matters enormously, and experienced probate counsel becomes essential. The same dynamics that drive contested estates here echo the patterns we see in other jurisdictions; Morgan Legal’s New York team has written extensively about , and the underlying family-conflict dynamics translate well across state lines even though the homestead statutes are uniquely Floridian.
It also helps to understand how the broader probate framework varies. New York, for instance, recognizes several distinct administration tracks; Morgan Legal explains the , which is a useful contrast for families with ties to more than one state. For Florida-specific representation, the firm’s Miami-area practice handles .
Homestead, Creditors, and the Surviving Family
One of the most valuable features of homestead is its protection from the decedent’s creditors. If the home qualified as constitutional homestead and passes to heirs who are within the protected class, the property generally remains beyond the reach of unsecured creditors even after death. Florida courts have repeatedly affirmed that this protection inures to the benefit of the heirs.
There are limits. A mortgage on the home survives, as do property tax obligations and certain consensual liens. And if the property passes to someone outside the class of persons the constitution protects, the creditor shield can evaporate. This is one more reason the homestead determination in probate must be done carefully rather than assumed.
Why a Will (or Better, a Plan) Still Matters
Everything above describes what happens by default when there is no will. The default is not always what a family would have chosen. A surviving spouse may have preferred outright ownership; children may have expected an equal share that intestacy does not deliver. Thoughtful planning, including a properly drafted will and, where appropriate, an enhanced life estate deed or a trust, can shape these outcomes within the bounds the constitution allows. Families wanting to understand the full landscape often start with our overview of Florida probate before deciding what planning tools fit their situation.
If you have recently lost a loved one in Miami who owned a home and left no will, the clock on certain elections is already running. The sooner the homestead’s status is determined, the cleaner the path to clear title and the lower the risk of a family dispute hardening into litigation. Our team is ready to help you sort through it; you can reach out for a consultation to discuss the specifics of your situation.
Frequently Asked Questions
Does Florida homestead property go through probate when there is no will?
Homestead must still be addressed in a Miami probate case, even without a will. The court enters an order determining homestead status and vesting title in the heirs under Florida Statutes section 732.401. However, because homestead is protected from most creditors, it is treated separately from the creditor-claim process that applies to other estate assets.
Who inherits a Florida home if the owner dies without a will?
It depends on who survives. A spouse with no descendants generally takes the home outright. A spouse with descendants takes either a life estate or, by timely election, an undivided one-half interest as tenant in common, with the descendants holding the other half. If there is no spouse, descendants inherit per stirpes.
What is the surviving spouse's homestead election in Florida?
Under section 732.401, a surviving spouse may elect to take a one-half undivided interest in the homestead as a tenant in common instead of the default life estate. The election must be made within six months of the decedent’s death and recorded, so it is time-sensitive.
Can creditors take a Florida homestead after the owner dies?
Generally no. Constitutional homestead protection from the decedent’s unsecured creditors usually passes to qualifying heirs, keeping the home beyond most claims. Exceptions include mortgages, property taxes, and certain consensual liens, and the protection can be lost if the property passes outside the protected class of heirs.
Why does a will sometimes fail to control who gets a Florida home?
The Florida Constitution forbids devising homestead if the owner is survived by a spouse or a minor child, except a transfer to a spouse alone when there is no minor child. An improper devise is void, and the property instead descends under the intestate homestead rules, which can override the will’s instructions.
Have a question about your estate?
Talk it through with Russel Morgan — free 30-minute consult.
For more on our Florida practice, see our overview of Florida probate administration. Morgan Legal Group's affiliated New York office also handles .
