Florida homestead law protects a primary residence in three distinct ways: it caps property taxes through the Save Our Homes assessment limit, it shields the home from most creditors, and—most surprisingly to out-of-state owners—it restricts how you may leave the home in your will if you are survived by a spouse or minor child. For Long Island families who own a Florida home, or who split the year between New York and the Sunshine State, that third protection is the one that quietly rewrites estate plans. Understanding it before you sign anything is the difference between a clean transfer and a probate fight.
I have spent years untangling Florida homestead questions for clients whose lawyers drafted perfectly valid New York documents that simply do not work the way they expect once Florida law applies. The home is usually the most valuable—and most emotionally loaded—asset in the plan. Here is what you actually need to know.
What Florida homestead protection really means
People use the word “homestead” loosely, but in Florida it refers to three separate legal regimes that happen to share a name. They come from different parts of the law and they do not always overlap cleanly.
- Tax homestead. Under Article VII of the Florida Constitution and Chapter 196 of the Florida Statutes, your permanent residence qualifies for a homestead exemption (currently up to $50,000 off assessed value) plus 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.
- Creditor homestead. Article X, Section 4 of the Florida Constitution shields the home from forced sale by most creditors. The protection is generous—it is one of the reasons people relocate to Florida—but it is tied to acreage limits: up to half an acre within a municipality, or up to 160 acres outside one.
- Devise-restriction homestead. This is the estate-planning trap. The same constitutional provision that protects the home from creditors also limits how you can give it away at death when you leave behind a spouse or a minor child.
A snowbird who summers on Long Island and winters in Naples can qualify for all three, none, or some combination—depending on which home is the “permanent residence.” You cannot claim homestead on two states at once. Florida appraisers cross-check New York and other states’ residency benefits (like the STAR exemption), and claiming both can trigger back taxes and penalties.
The restriction on devise that catches New York owners off guard
In New York, you can generally leave your home to whomever you choose, subract a spouse’s right of election. Florida is stricter. If you are survived by a spouse or a minor child, the Florida Constitution and Florida Probate Code (Florida Statutes § 732.401 and § 732.4015) sharply limit your freedom to devise the homestead.
If you have a surviving spouse but no minor child
You generally cannot leave the homestead outright to anyone other than your spouse. If you try—say, leaving it to children from a prior marriage—the gift fails and the law substitutes its own outcome: your spouse receives a life estate, with the remainder to your descendants. Since 2010, the surviving spouse may instead elect, within six months, to take a one-half undivided interest as a tenant in common. Either way, the document you signed does not control.
If you have a minor child
You cannot devise the homestead at all—not even to your spouse. The law overrides the will entirely. This single rule has derailed more blended-family plans than almost any other in Florida practice.
If you have neither
If there is no surviving spouse and no minor child, the restriction lifts and you may leave the homestead to anyone. This is why proper planning often hinges on family status at the moment of death, not the moment of drafting.
Why a will alone is rarely enough
Because the devise restriction can quietly defeat a will, Florida estate planners lean on tools that move the home outside the probate estate or satisfy the constitutional requirements deliberately rather than by accident.
- Enhanced life estate (“Lady Bird”) deed. Florida is one of a handful of states recognizing this instrument. You keep full control during life—including the right to sell or mortgage without anyone’s consent—and the property passes automatically to named beneficiaries at death, avoiding probate. Crucially, the Florida Department of Revenue and case law treat a properly drafted Lady Bird deed as not breaking the homestead tax exemption or Save Our Homes cap during your lifetime.
- Revocable living trust. A trust can hold the home and avoid probate, but it must be drafted with the homestead rules in mind. Done carelessly, transferring a homestead into a trust can jeopardize creditor protection or run afoul of the devise restriction. Done well, it preserves both.
- Spousal waiver. A spouse can knowingly waive homestead rights in a valid prenuptial or postnuptial agreement (Florida Statutes § 732.702). For blended families, this is often the cleanest path to leaving the home to children from a prior marriage.
- Joint ownership with survivorship. Tenancy by the entirety between spouses passes the home automatically and outside probate—but it does not solve the second-spouse-versus-prior-children tension and can complicate creditor exposure.
For families with a beneficiary who has disabilities, the home—or its eventual sale proceeds—may need to flow into a properly structured trust to preserve public benefits. That coordination, between Florida homestead rules and a special needs trust, is delicate and should never be improvised.
Dual-state residency: New York and Florida at the same time
Many Long Island clients want Florida’s tax and creditor advantages without fully severing New York ties. That is possible, but it requires intention and documentation, not just a tan and a mailing address.
- Pick one permanent residence. File a Declaration of Domicile in your Florida county, register to vote and obtain a Florida driver’s license, and direct mail, bank accounts, and tax filings to Florida if that is your chosen domicile.
- Mind New York’s residency audit. New York aggressively audits former residents, applying the 183-day statutory residency test and a multi-factor domicile analysis. Owning a “permanent place of abode” on Long Island while spending substantial time there can pull you back into New York income tax.
- Coordinate your documents. A will valid in New York is generally valid in Florida, but validity is not the same as effectiveness. A New York will can be admitted to Florida probate yet still collide with the homestead devise restriction. Have both states’ rules reviewed together.
If your primary estate planning documents still sit with a New York firm, it is worth having them reviewed in tandem—your last will and testament in New York should be read against Florida homestead law before you assume the family home will pass the way the document says. For the Florida side of the plan, Morgan Legal’s Florida estate planning team can align the deed, trust, and homestead strategy.
Common and costly homestead mistakes
- Putting the home in an LLC. An LLC is not a natural person, so it cannot claim homestead—you lose the tax exemption, the Save Our Homes cap, and creditor protection in one move.
- Assuming a New York will controls. It does not override the devise restriction.
- Double-dipping on residency benefits. Keeping a New York STAR exemption while claiming Florida homestead invites penalties and back taxes in both states.
- Ignoring portability. When you sell one Florida homestead and buy another, you can transfer up to $500,000 of accumulated Save Our Homes benefit—but you must file Form DR-501T within the statutory window.
- Forgetting the minor-child rule. A perfectly drafted spousal plan can be void if a minor child survives.
When to bring in an attorney
If you own a Florida home and any of the following apply, the plan deserves professional eyes: you have children from a prior marriage, a beneficiary who relies on government benefits, real estate in more than one state, or a New York will you have not revisited since moving south. Homestead law is unforgiving precisely because it overrides documents rather than reading them. The fix is almost always cheaper before death than the litigation that follows it.
Start by gathering your current deed, your existing will or trust, and your most recent property tax bill, then schedule a review through our contact page or read more about the documents involved on our wills and trusts overview.
Frequently asked questions
Can I leave my Florida home to my children if I am married?
Not freely. If you have a surviving spouse and no minor child, you generally cannot devise the homestead to anyone but your spouse; the law substitutes a life estate or a one-half tenancy in common. A valid spousal waiver in a pre- or postnuptial agreement is usually required to leave it to children from a prior marriage.
Does a Lady Bird deed keep my homestead tax exemption?
Yes. A properly drafted enhanced life estate (Lady Bird) deed lets you retain full control and the homestead tax exemption and Save Our Homes cap during your lifetime, while the property passes to your named beneficiaries at death and avoids probate.
Can I claim homestead in both New York and Florida?
No. Florida homestead requires the property to be your permanent residence, and you cannot simultaneously claim equivalent residency-based benefits in another state. Claiming both can trigger back taxes and penalties, and Florida appraisers actively cross-check other states’ records.
Will my New York will work for my Florida home?
A New York will is generally valid in Florida, but validity does not guarantee the result. Florida’s homestead devise restriction can override the will when a spouse or minor child survives, so the document should be reviewed against Florida law before you rely on it.
What happens to the homestead if I have a minor child?
If you are survived by a minor child, Florida law does not let you devise the homestead at all—not even to your spouse. The constitution dictates the outcome regardless of what your will says, which is why families with minor children need a deliberately structured plan.
Frequently Asked Questions
Can I leave my Florida home to my children if I am married?
Not freely. If you have a surviving spouse and no minor child, you generally cannot devise the homestead to anyone but your spouse; the law substitutes a life estate or a one-half tenancy in common. A valid spousal waiver in a pre- or postnuptial agreement is usually required to leave it to children from a prior marriage.
Does a Lady Bird deed keep my homestead tax exemption?
Yes. A properly drafted enhanced life estate (Lady Bird) deed lets you retain full control and the homestead tax exemption and Save Our Homes cap during your lifetime, while the property passes to your named beneficiaries at death and avoids probate.
Can I claim homestead in both New York and Florida?
No. Florida homestead requires the property to be your permanent residence, and you cannot simultaneously claim equivalent residency-based benefits in another state. Claiming both can trigger back taxes and penalties, and Florida appraisers actively cross-check other states’ records.
Will my New York will work for my Florida home?
A New York will is generally valid in Florida, but validity does not guarantee the result. Florida’s homestead devise restriction can override the will when a spouse or minor child survives, so the document should be reviewed against Florida law before you rely on it.
What happens to the homestead if I have a minor child?
If you are survived by a minor child, Florida law does not let you devise the homestead at all—not even to your spouse. The constitution dictates the outcome regardless of what your will says, which is why families with minor children need a deliberately structured plan.
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