Estate Planning Guide

Florida Homestead Exemption & Estate Planning: What Homeowners Should Know

Florida's homestead law is one of the most powerful, and most misunderstood, protections available to homeowners. It lowers your property tax bill, shields your home from most creditors regardless of its value, and, less well known, can override what your will says about who inherits it.

Homestead Protection Under Florida Law: Three Different Things

People often use the word "homestead" to mean one thing, but Florida law actually gives homestead status three separate, unrelated protections under Article X, Section 4 of the Florida Constitution: a reduction in your property tax bill, protection of the home from forced sale by most creditors, and restrictions on who you can leave the home to at death. A homeowner can qualify for the tax exemption without ever thinking about the other two, which is exactly why the devise restriction below catches so many people by surprise when it matters most.

The Homestead Property Tax Exemption

For the 2026 tax year, a qualifying permanent residence receives a $25,000 exemption that applies to school and non-school taxes alike, plus an additional exemption for non-school taxes that is now adjusted each year for inflation under a 2024 constitutional amendment. That additional exemption is $26,411 for 2026, bringing the maximum combined exemption to $51,411 of assessed value for homes with a high enough value to use the full amount. On top of the exemption, the Save Our Homes cap limits how much your home's assessed value can increase each year, capped at the lower of 3% or the change in the Consumer Price Index, which worked out to 2.7% for 2026. Voters will also decide a separate proposed amendment on the November 2026 ballot that would raise the additional exemption substantially over the following two years, but that increase is not in effect unless and until it passes.

Creditor Protection: What "Unlimited" Actually Means

Florida's homestead exemption from creditors has no dollar cap. Whether a home is worth $300,000 or $3 million, its equity is generally protected from forced sale to satisfy a money judgment from an unsecured creditor. This is a meaningful part of asset protection planning in Florida, and it is one reason many people move significant equity into a homestead rather than other assets. The protection is not absolute, though. The Constitution carves out three specific exceptions: the mortgage or other lien used to purchase, improve, or repair the home, property taxes and assessments on the home, and liens for labor or materials used to improve the property, such as a contractor's lien. Federal tax liens from the IRS are also enforceable against a homestead under federal law, regardless of the state exemption.

The Devise Restriction That Surprises Most People

This is the part of homestead law that has nothing to do with taxes or creditors, and everything to do with your estate plan. If you are survived by a spouse and a minor child, the homestead cannot be devised to anyone by will, not even to your spouse. It passes automatically by operation of law. If you are survived by a spouse but no minor child, you may devise the homestead only to that spouse, unless your spouse has validly waived this right. If you have no surviving spouse but do have a minor child, you cannot devise the homestead away from that child. In every case, these rules override the plain language of your will.

What Happens If a Will Violates the Restriction

When a will tries to leave the homestead to someone outside these rules, for example an adult child from a prior relationship, a sibling, or a friend, that part of the will is not honored. Instead, if the owner is survived by a spouse and descendants, the surviving spouse receives a life estate in the home, with the remainder interest passing to the owner's descendants, per stirpes. A life estate is a real limitation: the spouse cannot sell, mortgage, or make major changes to the property without the remainder beneficiaries' agreement. Because that arrangement can create friction in blended families, Florida law also gives the surviving spouse an alternative: an election, made within six months of the owner's death, to take an undivided one-half interest in the homestead as a tenant in common instead of the life estate. Which option makes more sense depends heavily on the family's circumstances.

Homestead and Trusts

Moving a homestead into a revocable trust does not sidestep these restrictions. The Constitution's devise rules apply to property passing through a trust the same way they apply to a will. Florida law does allow a homestead to be devised into a trust for a surviving spouse's benefit, but only if the trust gives the spouse the same protection the Constitution requires, generally the equivalent of a life estate, along with the ability to occupy the property. A trust drafted without that protection can run into the same problem as a will that ignores the rule. This is one of several reasons homestead property needs careful, coordinated titling between a will, a trust, and any deed, including tools like a Lady Bird deed, which is specifically designed to preserve the homestead exemption while avoiding probate.

Waiving the Restriction

A spouse can voluntarily give up their homestead devise rights, most commonly through a properly drafted prenuptial or postnuptial agreement, or a separate written waiver that meets the statute's requirements. This comes up frequently in second marriages, where one spouse wants to make sure a home from before the marriage ultimately passes to children from a prior relationship rather than being tied up in a life estate for a new spouse. Waivers in this area need to be drafted carefully. A waiver that is too broad, too narrow, or missing a required disclosure can be challenged after the fact, which defeats the purpose of putting one in place.

Why This Belongs in Every Florida Estate Plan

Homestead status is not something you elect into for estate planning purposes. If your primary residence in Florida qualifies for the property tax exemption, the devise restrictions apply automatically whether your will accounts for them or not. The practical result is that a will drafted without the homestead rules in mind can fail to do what the client intended, sometimes without anyone realizing it until after death. Reviewing how a home is titled, who is expected to survive the owner, and whether any waiver is appropriate is a standard part of building a Florida estate plan around real property.

Common Questions

Frequently Asked Questions

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

Not always. If you are survived by a spouse and a minor child, the Florida Constitution does not allow the homestead to be devised at all, not even to the spouse. If you are survived by a spouse with no minor child, you may devise the homestead only to that spouse, unless the spouse has waived this right. These restrictions override anything your will says.

What happens if my will tries to leave the homestead to someone else anyway?

The devise is treated as invalid to the extent it violates the restriction. Instead, if you are survived by a spouse and descendants, the surviving spouse generally receives a life estate in the home, with the remainder passing to your descendants. Florida law also gives the surviving spouse the option to elect an undivided one-half interest as a tenant in common instead, if that election is made within the statutory deadline.

Does putting my homestead in a trust avoid these restrictions?

Not automatically. A homestead can be devised into a trust for a surviving spouse's benefit, but only if the trust gives the spouse the equivalent of the life estate interest the Constitution requires. A trust that tries to cut out a surviving spouse or minor child from that interest runs into the same restriction as a will.

Is my Florida homestead protected from all creditors?

It is protected from most unsecured creditors, regardless of the home's value. The main exceptions are the mortgage on the property, property taxes and assessments, and liens for labor or materials used to improve the property, such as a contractor's lien. Federal tax liens from the IRS are also an exception.

Will the Florida homestead tax exemption increase in 2026?

For the 2026 tax year, the standard exemption remains $25,000 for school taxes plus an additional exemption, adjusted for inflation, of $26,411 for non-school taxes, for a maximum of $51,411 in exemption. A separate proposed constitutional amendment on the November 2026 ballot would raise the additional exemption significantly over the following two years if voters approve it, but as of this writing it has not yet passed.

Not Sure How Homestead Rules Affect Your Estate Plan?

General information is a starting point, not a substitute for advice about your specific circumstances. Schedule a consultation with Attorney Graziano, in person or by video.

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