Homestead Property and Florida Probate: What Long Island Families Need to Know

In Florida, homestead property is the deceased person’s primary residence, and it receives special constitutional protection that sets it apart from every other asset in a probate estate. Because of that protection, a Florida homestead generally cannot be devised freely if the owner leaves a surviving spouse or minor child, and it usually passes to the heirs outside the reach of most creditors. Understanding how homestead interacts with Florida probate is essential for any Long Island family that owns a winter home in Naples, Boca Raton, or Sarasota.

I have spent years helping New York families navigate estates that straddle two states, and the homestead rules trip up more snowbirds than almost any other issue. What works in New York does not automatically work in Florida. Below is a practical, plain-English walk-through of how Florida homestead and probate actually function, and where the traps are hiding.

What Makes Florida Homestead Different

Most people hear “homestead” and think of a property tax break. In Florida, the homestead concept does three separate jobs, and they are easy to confuse:

• Tax exemption — a reduction in assessed value plus the Save Our Homes assessment cap.
• Creditor protection — protection from forced sale by most creditors during life and, in many cases, after death.
• Devise and descent restrictions — limits on who you can leave the home to if you have a spouse or minor child.

The first comes from Florida statute. The second and third come straight from the Florida Constitution, Article X, Section 4. That constitutional pedigree matters: it means a will that violates the homestead devise rules does not override the Constitution. The home passes the way the Constitution dictates, not the way the document says.

The three-pronged definition

For probate purposes, homestead is real property owned by a Florida resident that serves as the owner’s primary residence, subject to size limits — up to half an acre inside a municipality, or up to 160 acres outside one. A second home, a rental, or a New York co-op does not qualify. Residency and intent to make the property a permanent home are what count.

How Homestead Passes Through (and Around) Probate

Here is the part that surprises New Yorkers most: Florida homestead is often treated as non-probate property even though it requires a court process to confirm. The home is not a “probate asset” available to pay the decedent’s general creditors, yet a Florida court typically must enter an order determining homestead status before title is clean.

This is usually done through a Petition to Determine Homestead Status of Real Property. The personal representative or an heir asks the probate court to confirm that the property was the decedent’s homestead, that the protections apply, and to identify who takes title. Once entered, that order is recorded in the county land records and functions as the link in the chain of title.

So the practical answer to “does Florida homestead go through probate?” is nuanced. It passes outside the claims process that exposes ordinary assets to creditors, but it still travels through the probate court for a determination. New York’s process is structured differently, which is exactly why a New York-licensed attorney coordinating with Florida counsel saves families from costly missteps. If your loved one’s estate also includes New York assets, you will likely be juggling a parallel proceeding — and it helps to understand before you start.

Who Inherits the Homestead: The Devise Restrictions

This is where good intentions in a will collapse. Under Article X, Section 4(c) and Florida Statutes 732.401, if the decedent is survived by a spouse or a minor child, the homestead cannot be freely devised. The rules break down like this:

1. Surviving spouse and a minor child: The home cannot be devised at all. The surviving spouse takes a life estate, with a remainder to the descendants — or the spouse may elect, within six months, to take a one-half tenancy-in-common interest instead under Florida Statutes 732.401(2).
2. Surviving spouse, no minor child: The decedent may devise the homestead only to the spouse. A devise to anyone else is invalid, and the spouse again may choose between the life estate and the half-interest election.
3. No spouse, but a minor child: The homestead cannot be devised; it descends to the heirs.
4. No spouse and no minor child: The owner has full freedom to leave the homestead to whomever they wish.

The election between a life estate and a one-half tenancy in common, added by the Legislature in 2010, is one of the most consequential decisions a surviving spouse makes. A life estate sounds generous, but it saddles the spouse with taxes, insurance, and upkeep while the remaindermen wait. The half-interest option often serves the spouse better — but it must be elected in writing within the statutory window, or it is lost.

Why a “simple” will can fail in Florida

I regularly see New York wills that leave the Florida condo to the children “share and share alike,” drafted while a spouse is still living. In Florida, that devise is void to the extent it conflicts with the homestead rules. The home does not go where the will says; it follows the Constitution. The result is delay, litigation, and family conflict — precisely the outcome the planning was meant to avoid.

Homestead and Creditor Protection After Death

One of the most powerful features of Florida homestead is that it generally passes to heirs free of the decedent’s creditors. If the property qualifies and descends to a surviving spouse or heirs, most creditors cannot force its sale to satisfy the decedent’s debts. The major exceptions are obligations tied to the property itself: a mortgage, a properly recorded construction lien, and property taxes.

This protection is not automatic in the sense of being self-executing. Creditors sometimes challenge homestead status, and the heirs’ relationship to the decedent affects whether protection carries through. The protection generally inures to the benefit of those who would inherit under the laws of intestacy — the decedent’s heirs at law. A devise to a friend or a more distant party can break the creditor shield, which is another reason careful planning matters.

Guardianship, Capacity, and the Homestead Transition

Many of the contested estates I handle did not begin as probate disputes — they began as guardianships. When a Florida property owner loses capacity, a guardian may be appointed to manage their affairs, and the homestead frequently sits at the center of those proceedings. A guardian generally cannot sell or mortgage a ward’s homestead without specific court approval, and the constitutional protections continue to apply while the ward is alive.

The friction point arrives at the transition. When a ward dies, the matter shifts from guardianship to probate, and the homestead’s status must be re-examined under the descent rules. Disputes that simmered during the guardianship — over who was managing the home, who paid the carrying costs, and what the ward actually intended — often erupt once the property is up for distribution. Documenting the ward’s residency, intent, and the source of payments throughout the guardianship makes the later homestead determination far cleaner. Where there is no will, the home descends by Florida’s intestacy statutes, and the same spouse-and-minor-child analysis controls.

Practical Steps for Long Island Families With a Florida Home

If you or a parent owns a Florida residence, a little coordination now prevents a great deal of pain later:

• Confirm true residency. Homestead protection follows the primary residence. If the Florida home is the legal domicile, say so consistently across tax filings, voter registration, and driver’s license.
• Map both estates. A New York apartment plus a Florida home usually means two coordinated proceedings. Plan them together, not after the fact.
• Mind the devise rules before drafting. Do not leave the homestead to children if a spouse survives. Build the plan around Article X, Section 4.
• Consider an enhanced life estate (“Lady Bird”) deed. In Florida, this can pass the homestead at death while preserving the owner’s control and the homestead exemptions — but it must be drafted correctly.
• Keep records during any guardianship. Residency, intent, and carrying-cost payments all become evidence later.

Because the home itself sits in Florida, you will need counsel admitted there. Our firm coordinates Florida matters through the Florida probate team, while the New York side of an estate is handled out of our practice. The two have to talk to each other — and they should be doing so from the start.

For families just beginning to organize their affairs, it often helps to revisit the underlying documents first. You can learn more about getting the foundation right on our wills page, or read through our overview of Florida probate before you reach out. When you are ready to talk through your specific situation, contact us and we will walk you through both states together.

The Bottom Line

Florida homestead is not just a tax break — it is a constitutional regime that dictates who inherits the family home and shields it from most creditors, while still requiring a probate court order to clear title. For Long Island families with a place in the sun, the worst mistake is assuming a New York will settles the question. It does not. Plan for both states, respect the devise restrictions, and document everything, and the home that gave your family so many good years will pass cleanly to the next generation.

Frequently Asked Questions

Does Florida homestead property have to go through probate?

It depends on what you mean by probate. A Florida homestead is generally not a probate asset reachable by the decedent’s general creditors, but a probate court usually must still enter an order — through a Petition to Determine Homestead Status — to confirm the home’s status and clear title before it can be transferred or sold.

Can I leave my Florida home to my children in my will if I am married?

Usually no. Under the Florida Constitution (Article X, Section 4) and Florida Statutes 732.401, if you are survived by a spouse, the homestead generally cannot be devised to anyone but that spouse. A surviving spouse with a minor child receives a life estate or may elect a one-half tenancy-in-common interest. A devise that violates these rules is void as to the homestead.

Are my Florida home's creditor protections lost when I die?

Not automatically. If the homestead descends to a surviving spouse or to heirs at law, it generally passes free of most of the decedent’s creditors, with exceptions for mortgages, property taxes, and construction liens. Leaving the home to a non-heir, however, can break the protection, so the way the home is devised matters.

My parent owns a home in both New York and Florida. Do we need two probates?

Often, yes. Real property is typically probated in the state where it sits, so a New York residence and a Florida residence usually require coordinated proceedings in each state. Working with attorneys in both jurisdictions from the start avoids conflicting orders, missed deadlines, and unnecessary delay.

What happens to a Florida homestead after a guardianship ends in death?

The matter transitions from guardianship to probate. The guardian’s authority over the home ends, and the court re-examines the property under the homestead descent rules. Whether the owner left a will, and whether a spouse or minor child survives, determines who takes title. Records kept during the guardianship about residency, intent, and expenses make this determination much smoother.