Can I leave my Florida home to whoever I want?
Short answer: Not always. If you are survived by a spouse or a minor child, Florida's constitution limits who can receive your homestead, and a will or trust that ignores the rule is simply disregarded for that property.
What the rule says
Florida's homestead protection is written into the state constitution. One part of it shields your home from most creditors. Another part, Article X, section 4(c), restricts how you can pass the home at death: if you leave a spouse or a minor child, the homestead "shall not be subject to devise," with one exception. If there is no minor child, you may leave the home to your spouse. The Florida Probate Code repeats the rule in section 732.4015 and makes clear that it applies whether the home is in your name or in your revocable trust.
What happens if a will or trust breaks the rule
The gift fails, and the home passes under section 732.401 instead. When there is a surviving spouse and descendants, the spouse receives a life estate and the children receive the remainder. The spouse can instead elect to take a one-half interest as a tenant in common, but that election must be made within six months of the death and is irrevocable. Families who expected the house to go to one person often discover this only during probate.
Three situations that change the answer
- Jointly owned with your spouse. Property held as tenants by the entirety or as joint tenants with right of survivorship passes to the survivor automatically; the devise restriction does not apply (section 732.401(5)).
- A signed waiver. A spouse can waive homestead rights in a prenuptial or postnuptial agreement that meets section 732.702. Without a valid waiver, the restriction stands.
- No spouse and no minor child. Then you may leave the home to anyone, by will or trust.
Why this matters in a blended family
The most common problem we see is a second marriage where the home is titled in one spouse's name and the plan leaves it to that spouse's children. If a minor child or the surviving spouse is alive at death, that plan fails for the house, and the family ends up in exactly the dispute the plan was meant to avoid. The fix is usually a deed, a waiver, or a different distribution pattern chosen on purpose.
Next step
If you own a Florida home and have a spouse, a minor child, or a blended family, have the deed and your current documents reviewed together. Email the firm through the Contact page to arrange a consultation.
This article is general information, not legal advice, and does not create an attorney-client relationship. Simani Law, PA is licensed in Florida and New York.