Free Guide · Florida Homestead Inheritance Rules
The Florida Default File
Who gets your house if you never decide?
Most estate planning guides tell you what you should do. This one tells you what Florida does if you do not. The Florida Probate Code is not a set of tie-breakers that operate at the margins. It is a complete alternative plan — already drafted, already in force, and applied to your family whether or not anyone in your family has read it.
It decides who takes your house and on what terms. It decides how much of your estate your spouse receives when there are children from more than one relationship. It decides what your ex-spouse still collects.
The only real question is how much of your plan the statute is currently writing.
Three defaults most owners never see coming
These are not obscure edge cases. Each one is a rule of general application in Florida, and each one routinely overrides a document the family believed was settled.
One
The homestead devise restriction
A constitutional rule that can void your disposition of the house before your will gets a vote.
Two
The intestate and elective shares
Statutory arithmetic that reaches well past probate and rewrites what a spouse actually receives.
Three
Beneficiary designations
Contracts with the custodian that pass outside your will entirely — and that federal law can shield from Florida's fixes.
Art. X, Sec. 4(c) of the Florida Constitution and Fla. Stat. § 732.4015(1) turn the homestead question on two facts: whether you are survived by a spouse, and whether you are survived by a minor child. Where the restriction applies and the devise fails, Fla. Stat. § 732.401 supplies the disposition instead. The guide walks through both facts and what the statute hands your family when the answer is no.
A 15-question diagnostic, built on the authorities
The download is not a lecture. It is a scored diagnostic in two sections, each question tied to the constitutional or statutory provision that governs it, so you can find out in about ten minutes how much of your plan Florida is currently writing. Four of the fifteen questions look like this.
- Are you married with a minor child, and do your documents leave the homestead to anyone other than your spouse outright? Then the devise fails before it starts, and Fla. Stat. § 732.401 supplies the answer instead.
- Did you move the homestead into your revocable trust and treat that as settling the question? It does not. Fla. Stat. § 732.4015(2) follows the restriction into the trust. Retitling solves probate avoidance and nothing else.
- Is a former spouse still named as a beneficiary on any account, policy, or annuity? Florida cures some of this and not all of it. Fla. Stat. § 732.703 has carve-outs that catch families every year.
- Were your estate documents drafted under another state's law before you moved to Florida? Then they were built against a different set of defaults. A document can be perfectly valid and still produce a result its drafter never contemplated.
The remaining eleven questions cover what happens to the house when the devise fails, the six-month election window and where it has to be filed, why a beneficiary designation has to be confirmed with the custodian rather than from your own file, which retirement accounts federal law protects from Florida's rules, the elective share arithmetic, survivorship title, the living documents a will does not replace, and out-of-state real property. Download the file to work through all fifteen.
Score it, then read your Exposure Rating
You total your risk points — one for each YES in Section A, one for each NO in Section B, out of 15 — and locate your total in one of three bands. Each band comes with a plain-English read on where you stand and what to do next.
Your documents are doing the deciding 0–3 points
The homestead disposition fits the constitutional rule, the designations have been confirmed with the custodians, and the people who will have to act know where the originals are.
The statute is writing part of your plan 4–8 points
The usual pattern — a well-drafted trust with a homestead provision that cannot operate, or a clean will alongside designations nobody has looked at since a rollover. None of it requires starting over, but the order of the fixes matters.
Florida is writing most of it 9–15 points
Every one of these is fixable while you are living and competent. None of them is fixable afterward, and the people who inherit the problem are the people the plan was for.
Then run the five-step sequence
The guide closes with the order Aspire Legal Solutions uses with owners, top to bottom. Starting with the will is the common mistake. The homestead question is answered by the Florida Constitution before your documents get a vote, so until you know that answer you do not know what the rest of the plan is allowed to distribute.
- Answer the two homestead facts first.
- Make the homestead disposition legal.
- Audit every beneficiary designation.
- Do the spousal arithmetic on purpose.
- Add the living documents. Tell someone.
Each step in the download carries the authority behind it, plus a standing list of the events that should send you back to the file — a marriage, a divorce, a birth, a death, a move across a state line, or a purchase of real property in another state.
Plus a plain-English glossary
Every term and authority in the guide, defined in the language you would use with your own family rather than the language of the statute book.
- Homestead (art. X, Sec. 4)
- Devise restriction
- § 732.4015
- § 732.401 (life estate)
- The one-half election
- Survivorship carve-out
- Intestate share (§ 732.102)
- Elective share (§ 732.2065)
- Revocation on divorce
- Spousal waiver (§ 732.702)
- The federal-law exception
Who this is for
Florida owners of a homestead, and especially married owners with a minor child, blended families where either spouse has children from a prior relationship, anyone divorced since signing their last set of documents, and anyone who moved to Florida carrying documents drafted under another state's law. It is also worth ten minutes if the only estate document you hold is a will, if your homestead sits in a revocable trust, or if you have never confirmed a beneficiary designation with the institution that actually holds the account.
Free Download
Get The Florida Default File
The full 15-question diagnostic, the Exposure Rating bands, the five-step sequence, and the glossary — eight pages, no charge. Enter your details and the guide is sent straight to your inbox.
Frequently asked questions
Doesn't putting the homestead in my revocable trust settle the question?
It does not. Fla. Stat. § 732.4015(2) defines “owner” to include the grantor of a trust and defines “devise” to include a disposition by trust of the portion of the trust estate that would be the grantor's homestead if titled in the grantor's name. The restriction follows the property into the trust. Retitling solves probate avoidance and does nothing about the devise rule.
Doesn't Florida automatically cut my ex-spouse out of my beneficiary designations?
Florida cures some of this and not all of it. Fla. Stat. § 732.703(2) voids a designation naming a former spouse on the assets listed in subsection (3), effective at the judicial dissolution, but only where the designation was made before the dissolution. And § 732.703(4)(a) says the rule does not apply “to the extent that controlling federal law provides otherwise,” which is why an employer-sponsored plan governed by ERISA is a different problem.
My documents were drafted in another state. Are they still good?
They may be perfectly valid and still produce a result their drafter never contemplated. Florida's homestead devise restriction has no counterpart in most states, the elective share here is 30 percent of the elective estate under Fla. Stat. § 732.2065, and the intestate shares differ. Validity and outcome are two separate questions.
I have a will. Isn't that the plan?
A will governs nothing before death, and it does not control assets that pass by beneficiary designation or by survivorship title. Those pass outside the will regardless of what the will says. The guide covers where a will stops and what has to be coordinated with it.
Who should run this diagnostic first?
Florida owners of a homestead, especially married owners with a minor child, blended families where either spouse has children from a prior relationship, anyone divorced since signing their last set of documents, and anyone who moved to Florida carrying documents drafted under another state's law.
Complimentary Discovery Call
Not Sure Where to Get Started?
Book a free Discovery Call with our Legal Solutions Coordinators to talk through which parts of your plan Florida is currently writing and what it takes to write them yourself. Bring whatever documents you already have and a list of your real property. Prefer the phone? Call 866.725.2818.
Book a Free Discovery CallThis page and the guide it offers are for educational purposes only and are not legal or tax advice. Reading either one does not create an attorney-client relationship. Joseph E. Seagle is licensed in Florida only, and every authority referenced here is Florida law: the homestead provisions of art. X, Sec. 4 of the Florida Constitution, and the Florida Probate Code (Fla. Stat. ch. 732, including §§ 732.102, 732.401, 732.4015, 732.2065, 732.507 and 732.703). Homestead devise restrictions, intestate shares, elective share regimes, and revocation-on-divorce statutes are state law and differ materially across state lines, so nothing here describes the treatment of property you own outside Florida — confirm with counsel licensed where that property sits. Federal law governs ERISA-covered plans and can displace the Florida rules described here. Nothing here is a prediction about any particular matter, and no client facts appear anywhere in it. Do not draft or amend an estate plan on the strength of a checklist. Consult an attorney about your specific situation.