Florida · Homestead descentFlorida homestead after a death: who owns it and who has to sign the sale

Florida's constitutional homestead rules often decide who must sign when an inherited home is sold. Under Florida Statutes §732.4015, the homestead can't be devised – by will or by a revocable trust – if the owner is survived by a spouse or a minor child, except that it may be left to the spouse when there's no minor child. When the homestead isn't validly devised, it passes like other property without a will, with one major rule (§732.401): if the owner is survived by a spouse and one or more descendants, the spouse takes a life estate and the descendants living at the death take a vested remainder, per stirpes. Instead of the life estate, the surviving spouse may elect to take an undivided one-half interest as a tenant in common, with the other half vesting in the descendants – an election that must be made within six months after the death, during the spouse's lifetime, by recording a notice of election with the legal description in the county records, and that can't be undone. Until an election is made, the costs of owning the home are split between the spouse as life tenant and the descendants as remaindermen. A spouse can give up these devise protections ahead of time by joining a deed that contains the statutory waiver language (§732.7025) – but that waiver doesn't waive the homestead's creditor protection or the requirement that both spouses join in a sale or mortgage. For a sale after a death, this usually means the descendants – not only the surviving spouse – own part of the home and must sign.