One of the most common and frustrating surprises in Florida estate planning is that you can have a perfectly valid Will and part of it still will not work. This is because Florida’s homestead laws can override what your Will says. Florida gives special legal protection to your primary residence, known as your “homestead,” and those protections do not end at death. Instead, they continue and can limit who you are allowed to leave your home to. In other words, you do not always have the freedom to leave your home to whoever you want, even if your Will clearly says otherwise.

A situation that comes up frequently is when a married person creates a Will leaving the home to children or another beneficiary, and then later dies survived by a spouse. In that case, Florida law may not allow that devise to stand. If your Will conflicts with Florida homestead law, the Will does not control as to the homestead. Instead, the law steps in and determines who receives the property. For example, if you are married and attempt to leave your homestead to someone other than your spouse, the surviving spouse will generally receive either a life estate in the property or the option to take a one-half ownership interest as a tenant in common, regardless of what the Will provides. The person you intended to receive the property outright will not receive it in the manner described in your Will.

The controlling law comes from both the Florida Constitution and the Florida Probate Code. Article X, Section 4(c) of the Florida Constitution provides that homestead property is not subject to devise if the owner is survived by a spouse or minor child, except in limited circumstances. This constitutional restriction is implemented through Florida Statutes Section 732.401, which governs the descent of homestead property, and Section 732.4015, which specifically addresses the devise of homestead. Together, these provisions override any contrary language in a Will and dictate who receives the property when the homestead restrictions apply.

If you are survived by both a spouse and minor children, the restrictions are even stricter. In that situation, you cannot devise the homestead at all. The law automatically provides a life estate to the surviving spouse, with the remainder interest passing to the children. Any contrary provision in your Will is essentially ineffective. These rules often lead to unintended and sometimes difficult outcomes, such as a surviving spouse and children becoming co-owners of the property, limitations on the surviving spouse’s ability to sell or refinance the home, and the need for court involvement to resolve practical issues. Families are often confused because the Will appears to say one thing, but the law requires a different result.

There are limited ways to plan around these restrictions, such as through a valid prenuptial or postnuptial agreement in which homestead rights are waived, or through careful advance planning with proper titling or trust-based strategies. However, these issues must be addressed during lifetime, as they cannot be corrected after death. The key takeaway is that if your Will says one thing but Florida homestead law says another, Florida law will control regardless of your intent. For this reason, estate planning in Florida must be done with a clear understanding of homestead restrictions, as even a well-drafted Will can fail to carry out your wishes if those rules are not properly considered.

An experienced estate planning attorney can help you ensure that your homestead property is properly included in your estate plan.  Contact Kruse Law  in St. Petersburg, Florida to set up a consultation.