When a loved one dies owning a Florida homestead, fights often erupt over who actually inherits the house (Homestead Property). This is even more common in second-marriage or blended families. In Broward County (and all of Florida), these disputes turn on Florida's Constitution and Probate Code, plus a formal “protected homestead” determination the court can make during probate. Here's the plain-English roadmap.
First principles: what “homestead” means
Florida's Constitution shields a qualifying primary residence from most creditor claims and restricts how it can be devised at death. If the owner dies with a surviving spouse or any minor child, the homestead cannot be left to anyone except the spouse (and not away from a minor child) by will.
Size/location limits: up to ½ acre inside a municipality (common for Broward condos/townhomes) or up to 160 acres outside a municipality.
Who really inherits? The common Broward scenarios
1) Survived by a spouse and at least one descendant (minor or adult).
If the will doesn't validly leave the homestead to the spouse (or there is no will), the default is: spouse gets a life estate and descendants take the remainder. The spouse may instead elect an undivided one-half interest as a tenant in common (the other half vests in the descendants). This election is irrevocable and—critically—has a six-month deadline from date of death, recorded in the public records.
2) Survived by a spouse, no minor children.
A will may devise the homestead entirely to the spouse. Any attempt to devise it to someone else while a spouse survives is generally invalid.
3) No surviving spouse.
With no spouse, the homestead may be devised freely; if not devised, it descends like other intestate property (typically to the decedent's descendants).
4) Second marriages & step-children.
Expect friction where a spouse holds a life estate but step-children hold the remainder or where the spouse makes the one-half election to enable a sale and division. Tight timelines and recording requirements make early legal advice essential.
How Broward courts decide “is this protected homestead?”
An interested person can file a Petition to Determine Protected Homestead under Florida Probate Rule 5.405. The petition is verified and must address domicile, surviving spouse/descendants, and whether minor children exist. The Florida Supreme Court recently addressed amendments to Rule 5.405, underscoring the procedure's importance.
Local practice tip (Broward): The 17th Judicial Circuit maintains probate checklists, forms (including the Affidavit of Heirs), and local procedures.
Devise restrictions that blow up a will plan
Even a carefully drafted will or trust can fail if it violates §732.4015 (devise of homestead). If a spouse or minor child survives, a devise to anyone other than the spouse is typically void as to the homestead. Title then passes by statute, not by the defective devise.
Fast answers to hot-button questions
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Can the spouse “force a sale”?
Not with a mere life estate. But if the spouse elects the one-half interest within six months, they become a co-owner and can pursue partition/sale like any tenant in common. -
Does the homestead go through probate?
The court typically enters an order determining protected homestead, which clarifies who owns it and confirms the constitutional protections. Creditors usually cannot force its sale (subject to tax and purchase-money exceptions). -
What if the home is over ½ acre in Fort Lauderdale?
The constitutional homestead exemption inside municipalities is limited to ½ acre; excess land may lose protection, complicating sales and creditor issues.
Bottom line for Broward families
Homestead inheritance in Florida is rule-driven and deadline-driven. If you're in a dispute, move quickly to preserve options and position the case for resolution.
Disclaimer: This article is provided for informational purposes only and does not constitute legal advice. Reading this content does not create an attorney-client relationship between you and Gold Legacy Law. For legal advice regarding your personal situation, please contact our office to schedule a consultation.