Florida Homestead Law and Protecting the Family Home in Your Estate Plan (Boca Raton Guide)

Florida homestead law is a set of constitutional protections that shield a person’s primary residence from most creditors, cap its property taxes, and tightly control who can inherit the home after death. For estate planning purposes, the most important point is this: in Florida, you cannot always leave your house to whomever you choose. If you are survived by a spouse or minor children, the state constitution—not your will—often decides what happens to the family home.

For adult children helping aging parents in Boca Raton get their affairs in order, homestead is the single most misunderstood part of any Florida estate plan. Get it right and the house passes cleanly, protected from creditors and probate delay. Get it wrong and a well-meaning will can be partially void, leaving the family in litigation at the worst possible time.

What “homestead” actually means in Florida

People use the word “homestead” to mean three different things, and they overlap only partly. When you help a parent plan, it helps to keep them separate in your head.

• The tax exemption. Article VII of the Florida Constitution gives a primary residence a $50,000 reduction in assessed value and the “Save Our Homes” cap, which limits annual increases in assessed value to 3% or the change in the Consumer Price Index, whichever is lower. This is what most people mean when they say they “filed for homestead.”
• The creditor protection. Article X, Section 4 of the Florida Constitution protects the home from forced sale by most creditors. This protection is unusually strong—Florida is one of a handful of states with essentially unlimited homestead creditor protection by acreage rather than dollar value.
• The devise and descent restrictions. The same Article X, Section 4 limits how an owner can give away the home at death when there is a surviving spouse or minor child. This is the part that quietly breaks estate plans.

A property can qualify for one and not another, and the rules for each are different. The acreage limits for creditor protection, for example, are up to one-half acre within a municipality (like most of Boca Raton) and up to 160 acres outside one.

How homestead creditor protection helps your estate plan

The creditor protection is what makes the Florida home such a valuable asset to plan around. During life, a properly established homestead generally cannot be reached by credit card companies, medical creditors, or a judgment from a lawsuit. There are narrow exceptions—property taxes, mortgages the owner agreed to, mechanic’s liens for work on the home, and a few others—but ordinary unsecured creditors are shut out.

Here is the part many families miss: in Florida, that protection can survive the owner’s death and flow to the heirs. When homestead passes to “heirs” within the meaning of the constitution, the property generally remains protected from the decedent’s creditors as it moves to those heirs. That is a powerful result, and it is one reason you do not want to casually retitle a homestead into an entity or a trust without understanding the consequences—doing so carelessly can forfeit protections that took no effort to keep.

The devise restrictions: why a will may not control the home

This is the heart of the matter for aging-parent planning. Under Article X, Section 4(c) of the Florida Constitution, if the owner is survived by a spouse or a minor child, the homestead cannot be freely devised by will. The restriction works like this:

1. If there is a minor child, the owner generally cannot devise the homestead at all. Any attempt to leave it to someone else—even the surviving spouse—is invalid, and the property descends under the statute instead.
2. If there is a surviving spouse but no minor child, the owner may devise the homestead only to the spouse outright. A devise to anyone else is improper unless the spouse has waived their homestead rights.

When a devise is invalid, Florida Statutes Section 732.401 supplies the default outcome. The historic rule gave the surviving spouse a life estate, with a vested remainder to the descendants. But the statute now offers the spouse a choice: instead of the life estate, the spouse may elect to take a one-half tenancy-in-common interest, with the other half passing to the descendants. The spouse must make that election within six months of the owner’s death and while still residing in the property, and the choice is effectively irrevocable.

For a blended family—say a widowed father in Boca remarries and wants the house to ultimately go to his children from his first marriage—this is exactly where plans fall apart. The new spouse has rights the will cannot override unless they were properly waived.

Waivers: the planning tool that prevents the surprise

Spousal homestead rights can be waived, but only the right way. Under Florida Statutes Section 732.702, a waiver must be in a written contract, agreement, or waiver, signed by the waiving party. This is commonly done in a prenuptial or postnuptial agreement, or in a stand-alone deed or agreement specifically addressing the homestead. A vague reference buried in a will usually will not do it. If your parent’s intention is for the house to skip a current spouse and go to children, the waiver is the document that makes it enforceable.

Passing the home to adult children: the realistic options

When there is no surviving spouse and no minor child, the owner is free to devise the homestead to adult children or anyone else. That opens up the planning toolkit. For a Boca Raton parent thinking about how the home reaches the next generation, the practical choices usually come down to a few approaches.

1. A lady bird deed (enhanced life estate deed)

Florida recognizes the “lady bird” or enhanced life estate deed. The parent keeps full control during life—they can sell, mortgage, or change their mind—and the property passes automatically to the named remainder beneficiaries at death, outside of probate. It does not count as a completed gift, so it generally does not disturb the homestead tax exemption or trigger gift tax, and it preserves the Medicaid look-back posture better than an outright transfer. For many aging parents, this is the cleanest, lowest-cost way to pass the home to adult children.

2. A revocable living trust

A Florida homestead can be held in a properly drafted revocable living trust without losing the tax exemption or creditor protection, and it keeps the home out of probate. The trust must be structured so the homestead character is preserved—this is technical, and a generic out-of-state trust form will not reliably do it. When done right, a trust is ideal where the parent owns property in more than one state or wants detailed instructions for the home after death.

3. A simple devise in the will

If there is no spouse or minor child, leaving the home through a will is perfectly valid. The tradeoff is that the home then passes through Florida probate. Homestead can often be administered through a streamlined petition to determine homestead status, but it is still a court process with timelines and costs.

An important caution on a fourth, popular-but-risky option: adding an adult child as a joint owner during life. It feels simple, but it can expose the home to that child’s creditors and divorce, create capital-gains problems by giving away the step-up in basis, and complicate Medicaid planning. We rarely recommend it. A lady bird deed accomplishes the same “avoid probate” goal without handing over present ownership.

Where special-needs children change the analysis

If a parent has a child with disabilities, leaving the home or sale proceeds to that child outright can disqualify them from means-tested benefits like SSI and Medicaid. The solution is to route the inheritance through a rather than a direct gift, so the asset supplements rather than replaces public benefits. The same planning principle applies in Florida, and it interacts with homestead rules whenever the residence is the family’s largest asset. This is one of those areas where a coordinated will and trust strategy matters more than any single document.

Common homestead mistakes Boca Raton families make

• Assuming the will controls the house. If a spouse or minor child survives, the constitution overrides the will. Families learn this only after death, in probate court.
• Retitling the home into an LLC or partnership. Entities do not get homestead protection. A home moved into an LLC for “asset protection” usually loses the very protection it had.
• Adding children as joint tenants to “avoid probate.” This exposes the home to the children’s liabilities and forfeits the basis step-up. Use a lady bird deed instead.
• Relying on an out-of-state trust. Florida homestead rules are unique. A trust drafted under another state’s law may not preserve the exemption or protection.
• Skipping the spousal waiver. In a second marriage, the new spouse has homestead rights that quietly defeat the plan to leave the home to children from a prior marriage.

How this fits the rest of the estate plan

Homestead is one piece. A complete plan for an aging parent in Florida usually pairs the deed or trust with a durable power of attorney, a health care surrogate designation, and a properly executed will to catch everything the homestead documents do not. Because the rules reach across state lines for snowbird families, it is common to coordinate a Florida plan with counsel who also handles the parent’s affairs up north—our team works on both, from to a . You can read more about getting the core documents in order on our wills page, and about the court process on our Florida probate page.

The takeaway for adult children: do not assume the family home is “handled” because there is a will. In Florida, the home is governed by its own constitutional rules, and the right deed or trust—signed while your parent is healthy—is what keeps the house out of court and in the family. If you are not sure how your parent’s home is titled or what their documents actually say, that is the first thing to check, and the easiest thing to fix. Reach out to review it before it becomes a probate problem.

Frequently Asked Questions

Can I leave my Florida home to anyone I want in my will?

Not always. If you are survived by a spouse or a minor child, Article X, Section 4 of the Florida Constitution restricts how the homestead can be devised. With a minor child, you generally cannot devise the home at all; with a surviving spouse and no minor child, you can leave it only to the spouse outright unless they have signed a valid waiver. With no spouse and no minor child, you may leave the home to anyone.

What is a lady bird deed and why do Florida families use it?

A lady bird deed, or enhanced life estate deed, lets a parent keep full control of the home during life—including the right to sell or mortgage it—while the property passes automatically to named beneficiaries at death, avoiding probate. It generally does not count as a completed gift, so it preserves the homestead tax exemption and does not trigger gift tax, making it a popular, low-cost tool for passing the home to adult children.

Does Florida homestead protection survive the owner's death?

Yes, in many cases. When homestead passes to heirs within the meaning of the Florida Constitution, it generally remains protected from the decedent’s creditors as it transfers to those heirs. This is one reason families should be cautious about retitling a homestead into an entity or a non-Florida trust, which can forfeit that protection.

Will putting my home in an LLC protect it better?

Usually the opposite. Homestead creditor protection applies to property owned by a natural person as a primary residence, not to property owned by an LLC, partnership, or corporation. Transferring a home into an entity typically strips away the constitutional protection it already had. A properly drafted revocable living trust can hold a Florida homestead while preserving the protections, but a generic entity cannot.

How can I leave the home to children from a prior marriage if I've remarried?

You generally need your current spouse to waive their homestead rights in writing, as allowed under Florida Statutes Section 732.702—commonly through a prenuptial or postnuptial agreement or a separate signed waiver. Without that waiver, the surviving spouse’s constitutional homestead rights can override a will that tries to leave the home to children from a prior marriage.