Writing a will and assuming it controls where your home goes after death is a reasonable assumption almost everywhere except Florida. The state’s homestead protections override ordinary will provisions in ways that surprise many people during estate planning.
The Constitutional Restriction On Devising Homestead
Under Florida Statute 732.4015, homestead property cannot be devised, meaning left through a will, if the owner is survived by a spouse or a minor child, except that the homestead may be devised to the owner’s spouse if there is no surviving minor child.
Why This Restriction Exists
This protection stems directly from Florida’s Constitution, reflecting a long-standing policy of protecting a surviving spouse and minor children from being left without a home. The restriction applies regardless of what a will actually says, overriding provisions that would leave the homestead to someone else entirely.
What Happens If A Will Violates This Restriction
If a will attempts to devise homestead property in violation of this rule, the surviving spouse generally receives a life estate in the home, with the remainder interest passing to the owner’s descendants. Alternatively, the surviving spouse may elect to take a 50-percent interest as a tenant in common with the descendants instead.
Whether A Spouse Can Waive These Homestead Protections
Yes, but only through a specific, formal waiver that meets Florida’s statutory requirements. A spouse can waive their homestead rights before or after marriage, allowing the owner to devise the property differently, though this waiver only works if there is no surviving minor child, since a spouse cannot waive a minor child’s own homestead interest.
Why Having A Minor Child Changes Everything
Even a valid spousal waiver cannot override the protection given to a minor child. Magill Law Offices flags this limitation early for any client with minor children in the household. If the owner has a minor child at death, the homestead restriction applies regardless of any agreement the spouse may have signed, which makes families with minor children face more limited planning options for this specific asset.
What Documentation Matters For Homestead Estate Planning
Because this restriction can override an otherwise clear estate plan, gathering the right information matters considerably:
- Current marital status and any prior spousal waiver documentation
- Information about any minor children who would be considered surviving heirs
- Records establishing the property’s status as the owner’s homestead
- Any existing trust documents that may hold or address the homestead property
Planning Around This Restriction For An Orlando Estate
Because this restriction can override an otherwise carefully drafted will, understanding how it applies to a specific family’s situation matters considerably. An Orlando estate planning lawyer can help structure an estate plan that works within these homestead restrictions rather than against them.
What If You Want To Leave Your Home To Someone Other Than Your Spouse
Directing homestead property to someone other than a spouse generally requires either no surviving minor child and a valid spousal waiver, or restructuring how the property is held well before death. An Orlando estate planning lawyer can evaluate what options actually exist given a family’s specific circumstances.
This restriction catches many people off guard precisely because it overrides what a will actually says, making it one of the more important things to understand early in Florida estate planning. If you own a home in Orlando and want to understand how this restriction affects your estate plan, reach out to our office to go over your situation.