Does a Florida Homestead Go Through Probate?

Florida homestead property does not become an estate asset simply because the decedent owned it at death. Once a probate case is open, the personal representative or another interested person may ask the probate court to determine that it is protected homestead. If the court decides the property meets the homestead criteria, it issues an order that removes the property from probate and passes it to heirs free of creditor claims.

What "protected homestead" means

The Florida Constitution exempts a person's homestead from forced sale by creditors, with limited exceptions for property taxes and assessments, obligations contracted for the purchase, improvement, or repair of the property (which is why a mortgage survives), and liens for labor on the property. The exemption covers up to one-half acre inside a municipality or 160 contiguous acres outside one. Art. X, § 4(a), Fla. Const. At death, the exemption "inures to the surviving spouse or heirs of the owner." Art. X, § 4(b).

For a probate homestead determination, domicile is an important fact. The Probate Code defines domicile as a person's usual place of dwelling. Fla. Stat. § 731.201(13). In practical terms, it is the person's fixed home—the place the person intends to make a permanent home, rather than a place used only temporarily. Ownership or a mailing address alone does not establish domicile; the person's intent and actions are considered. A person may have several residences but generally only one domicile. The petition must state the county of the decedent's domicile and whether the property itself was the decedent's domicile; if the property is within a municipality, the rule also asks whether it was the domicile of a member of the decedent's family. Fla. Prob. R. 5.405(b)(3), (8).

The Probate Code defines the property protected by the Constitutional exemption as "protected homestead." Real estate owned as tenants by the entireties or as joint tenants with right of survivorship is not protected homestead for probate purposes, because it passes to the survivor by operation of law. Fla. Stat. § 731.201(33).

This is a different question from the homestead property tax exemption, which lowers the tax bill during life. See Florida Homestead Exemption.

Why the homestead is not an estate asset

Because Art. X, § 4(b) of the Florida Constitution extends the homestead protection to the homeowner's spouse and heirs, homestead property that passes to these parties gets the privileged status of "protected homestead." Such property is unavailable in a probate case to pay the decedent's credit cards or medical bills, and its value is not counted when deciding whether an estate is small enough for summary administration. Fla. Stat. § 735.201(2).

Who receives it

If the owner is survived by a spouse or a minor child, the homestead cannot be devised by will at all, except that it may be devised to the spouse if there is no minor child. Art. X, § 4(c); Fla. Stat. § 732.4015. The same restriction applies to a homestead held in a revocable trust. A will that tries to leave the house to someone else simply fails as to the homestead.

If the homestead is not validly devised and the owner leaves a spouse and descendants, the spouse takes a life estate and the descendants take the remainder. Within six months of the death, the spouse may instead elect to take an undivided one-half equity interest as a tenant in common with the descendants, by recording a notice of election. The election is irrevocable. Fla. Stat. § 732.401.

If there is no surviving spouse or minor child, the owner may devise the homestead to anyone. The creditor protection carries over, however, only when the recipient is one of the decedent's heirs within the meaning of the intestacy statute. Fla. Stat. § 732.103; Snyder v. Davis, 699 So. 2d 999 (Fla. 1997). A homestead left to a friend or a charity becomes an ordinary estate asset that creditors can reach.

How does title to a homestead property pass to heirs?

When a person dies owning homestead real property individually, title generally vests in the devisees or heirs under the will or intestacy law, subject to Florida's homestead restrictions. A court order does not itself transfer the property. Instead, a personal representative or any interested person may file a verified petition asking the probate court to determine protected-homestead status. The petition identifies the decedent's domicile, spouse and descendants, the property's legal description, how title was held, and other supporting facts. The procedure may also apply to real property held by a trustee of a trust described in section 733.707(3). The court's order describes the property and, if it is protected homestead, names the people entitled to it and defines each person's interest. Fla. Prob. R. 5.405. Recording the order in the county's official records can document the determination and the heirs' interests in the property records.

The petition may be filed in a formal or summary administration. Protected homestead is excluded from the value calculation for summary administration. As of 2026, summary administration generally is available if the value of the estate subject to administration, after subtracting property exempt from creditor claims, does not exceed $150,000, or if the decedent has been dead for more than two years. See Does My Parent's Estate Qualify for Summary Administration?

If property that reasonably appears to be protected homestead is not occupied by someone who appears to have an interest in it, the personal representative may—but is not required to—take possession for the limited purpose of preserving, insuring, and protecting it while homestead status is determined. The personal representative may seek a lien against the property for authorized preservation expenses; the court determines the debt after formal notice, and the interested heirs or devisees are not personally liable for it. Fla. Stat. § 733.608(2)–(3).

Avoiding the proceeding altogether

A homestead titled with a spouse as tenants by the entireties passes to the survivor without probate. For an owner who wants the home to pass to children without a court proceeding, a Lady Bird deed or a properly drafted revocable trust can do so, subject to the constitutional limits on devise where a spouse or minor child survives. See Lady Bird Deed vs. Living Trust in Florida.

At Clarke Law, P.A., I assist clients in all probate matters, including protection of homestead property. Your first consultation is free.