Homestead Determination
Securing Florida's powerful constitutional protections for the family home.
Florida's constitution provides unique and powerful protections for a decedent's primary residence, shielding it from most creditors during probate.
However, this protection is not automatic. The probate court must issue an Order Determining Homestead Status to officially declare the property exempt from creditor claims and confirm the rightful heirs.
We file the necessary petitions to secure this status, ensuring the family home passes safely to the beneficiaries without being forced into sale to pay the decedent's debts.
Key Benefits
Creditor Shield
Protects the home from being sold to satisfy credit cards, medical bills, or other unsecured debts.
Clear Title
Provides title insurance companies with the court order needed to eventually sell the property.
Tax Preservation
Helps maintain property tax benefits for qualifying heirs.
Frequently Asked Questions
Does the homestead go through probate?
While it passes outside the probate estate for creditor purposes, a probate proceeding is still usually required to get the judge's order confirming its homestead status.
Can the decedent leave the homestead to anyone?
No. If the decedent was survived by a spouse or minor child, Florida law strictly limits who can inherit the homestead.
Can my father's creditors force the sale of his house to pay his bills?
Generally no. The Florida Constitution exempts homestead property from forced sale, with limited exceptions for property taxes and assessments, obligations taken on to purchase, improve or repair the home, and obligations for house, field or other labor performed on the property. The protection is limited by size rather than by dollar value: up to one-half acre of contiguous land inside a municipality, or up to 160 acres of contiguous land outside one.
My husband's Will leaves the house to me, but we have a child under 18. Does the Will control?
No. Both the Florida Constitution and Florida's probate law provide that homestead cannot be left by will if the owner is survived by a spouse or a minor child, with one narrow exception: the homestead may be left to the owner's spouse if there is no minor child. Because there is a minor child, that exception does not apply and the homestead passes under the statute instead of under the Will. The same restriction applies to a disposition by trust, so placing the house in a living trust does not avoid it.
My husband died and the house was in his name alone. What do I get, and what do his children get?
If the homestead was not left in a way the law and constitution allow, and there is a surviving spouse and one or more descendants, the surviving spouse takes a life estate in the homestead, with the descendants living at the time of death holding the remainder. Instead of that life estate, the surviving spouse may elect to take an undivided one-half interest as a tenant in common, with the other half going to the descendants. That election must be made within six months after the death and during the surviving spouse's lifetime, it is made by filing a notice of election for recording in the county where the property is located, and once made it cannot be undone.
Is the homestead exemption on my tax bill the same thing as homestead protection in probate?
No. These are two different provisions of the Florida Constitution that happen to share a name. The homestead tax exemption exempts a portion of the assessed value of a permanent residence from property taxation, and it is claimed by filing an application with the county property appraiser, generally on or before March 1. The homestead protection that matters in a probate is a separate provision that shields the home from forced sale by most creditors and restricts who the home may be left to. They are governed by different rules with different requirements.
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