Florida Statutes

Fla. Stat. § 732.401 (2025)

Descent of homestead.

✓ 2025 Florida Statutes — current through the 2025 Regular Session

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732.401 Descent of homestead.—

(1) If not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes.

(2) In lieu of a life estate under subsection (1), the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes.

(a) The right of election may be exercised:

1. By the surviving spouse; or

2. With the approval of a court having jurisdiction of the real property, by an attorney in fact or guardian of the property of the surviving spouse. Before approving the election, the court shall determine that the election is in the best interests of the surviving spouse during the spouse’s probable lifetime.

(b) The election must be made within 6 months after the decedent’s death and during the surviving spouse’s lifetime. The time for making the election may not be extended except as provided in paragraph (c).

(c) A petition by an attorney in fact or by a guardian of the property of the surviving spouse for approval to make the election must be filed within 6 months after the decedent’s death and during the surviving spouse’s lifetime. If the petition is timely filed, the time for making the election shall be extended for at least 30 days after the rendition of the order allowing the election.

(d) Once made, the election is irrevocable.

(e) The election must be made by filing a notice of election containing the legal description of the homestead property for recording in the official record books of the county or counties where the homestead property is located. The notice must be in substantially the following form:

ELECTION OF SURVIVING SPOUSE
TO TAKE A ONE-HALF INTEREST OF
DECEDENT’S INTEREST IN
HOMESTEAD PROPERTY

STATE OF

COUNTY OF

1. The decedent, , died on . On the date of the decedent’s death, the decedent was married to , who survived the decedent.

2. At the time of the decedent’s death, the decedent owned an interest in real property that the affiant believes to be homestead property described in s. 4, Article X of the State Constitution, which real property being in County, Florida, and described as: (description of homestead property) .

3. Affiant elects to take one-half of decedent’s interest in the homestead as a tenant in common in lieu of a life estate.

4. If affiant is not the surviving spouse, affiant is the surviving spouse’s attorney in fact or guardian of the property, and an order has been rendered by a court having jurisdiction of the real property authorizing the undersigned to make this election.

(Affiant)

Sworn to (or affirmed) and subscribed before me by means of ☐ physical presence or ☐ online notarization this day of (month) , (year) , by (affiant)

(Signature of Notary Public)

(Print, Type, or Stamp Commissioned Name of Notary Public)

Personally Known OR Produced Identification

(Type of Identification Produced)

(3) Unless and until an election is made under subsection (2), expenses relating to the ownership of the homestead shall be allocated between the surviving spouse, as life tenant, and the decedent’s descendants, as remaindermen, in accordance with chapter 738. If an election is made, expenses relating to the ownership of the homestead shall be allocated between the surviving spouse and the descendants as tenants in common in proportion to their respective shares, effective as of the date the election is filed for recording.

(4) If the surviving spouse’s life estate created in subsection (1) is disclaimed pursuant to chapter 739, the interests of the decedent’s descendants may not be divested.

(5) This section does not apply to property that the decedent owned in tenancy by the entireties or in joint tenancy with rights of survivorship.

History.—s. 1, ch. 74-106; s. 17, ch. 75-220; s. 37, ch. 2001-226; s. 12, ch. 2007-74; s. 7, ch. 2010-132; s. 3, ch. 2012-109; s. 4, ch. 2021-205.

Note.—Created from former s. 731.27.

Notes of Decisions

Cited in 74 cases (7 in the last 5 years), 1978–2025 · leading case: Wadsworth v. First Union Nat. Bank, 564 So. 2d 634 (Fla. 5th DCA 1990).

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Wadsworth v. First Union Nat. Bank, 564 So. 2d 634 (Fla. 5th DCA 1990). · cites it 15× “Because section 732.401, above set out, defines how homestead property descends, the appellants have an interest to have the property pass as homestead.”

Hartwell v. Blasingame, 564 So. 2d 543 (Fla. 2d DCA 1990). · cites it 9× “Hartwell's statutory rights as an heir or lineal descendant, pursuant to section 732.401(1), Florida Statutes (1987), do not give her separate homestead rights or the authority to override the surviving *544 spouse's valid waiver of homestead.”

King v. Ellison, 648 So. 2d 666 (Fla. 1994). · cites it 18× “We find that no conflict exists between section 732.401(1), Florida Statutes (1991), and article X, section 4(c) of the Florida Constitution that would render the statute unconstitutional.”

Cavanaugh v. Cavanaugh, 542 So. 2d 1345 (Fla. 1st DCA 1989). · cites it 7× “In circumstances such as the present, where the homestead is not devised as permitted by law and the constitution, and the decedent is survived by a spouse and lineal descendants, the homestead passes outside of the will and thereby outside of probate by virtue of section 732.”

Lorraine v. Grover, Ciment, Weinstein & Stauber, PA, 467 So. 2d 315 (Fla. 3d DCA 1985). · cites it 4× “It therefore passed directly to Johnson's children pursuant to section 732.401, Florida Statutes (1981).”

In Re Est. of Finch, 401 So. 2d 1308 (Fla. 1981). · cites it 6× “Her petition alleged that the property in question was homestead, that decedent was survived by a spouse and lineal descendants, and that the property should descend as provided in section 732.401(1), Florida Statutes (1977).”

Lowe v. Broward Cnty., 766 So. 2d 1199 (Fla. 4th DCA 2000). · cites it 2× “15(1)); distribution rights in *1206 homestead property ( Fla. Stat. § 732.401 ; Fla. Const. Art. 10, § 4(c)); legitimacy of children born out of wedlock upon the marriage of the parents (Fla.”

In Re Est. of Cleeves, 509 So. 2d 1256 (Fla. 2d DCA 1987). · cites it 4× “Cleeves, under the decedent's will and that the remaining undivided one-half interest descended in accordance with the provisions of section 732.401, Florida Statutes (1985).”

Dr. Ross G. Stone v. Nancy Stone & Alma Stone, 157 So. 3d 295 (Fla. 4th DCA 2014). · cites it 5× “Ross asserts that Jerome attempted to devise the property to Nancy in a manner contrary to Florida law, and, therefore, the attempted devise should fail and the homestead property should descend as if Jerome had died intestate, pursuant to section 732.401, Florida Statutes…”

Amendments to the Florida Prob. Rules, 848 So. 2d 1069 (Fla. 2003). · cites it 4× “§ 732.401, Fla. Stat. Descent of homestead.”

In Re Est. of Scholtz, 543 So. 2d 219 (Fla. 1989). · cites it 4× “At the same time, section 732.401, Florida Statutes (1985), *221 which provides the means by which homesteads shall descend, remained unchanged.”

Jacobs v. Jacobs, 633 So. 2d 30 (Fla. 5th DCA 1994). · cites it 7× “105(1), Florida Statutes, contending the suit was frivolous because regardless of whether Mary Jacobs took title to the property through the warranty deed or by operation of law Florida Constitution, Article X, section 4(c) and section 732.401(1), Florida Statutes she could…”

Show all 74 citing cases →

— 732.401(1) — 38 cases

Hartwell v. Blasingame, 564 So. 2d 543 (Fla. 2d DCA 1990). “Hartwell's statutory rights as an heir or lineal descendant, pursuant to section 732.401(1), Florida Statutes (1987), do not give her separate homestead rights or the authority to override the surviving *544 spouse's valid waiver of homestead.”

Wadsworth v. First Union Nat. Bank, 564 So. 2d 634 (Fla. 5th DCA 1990). “Because section 732.401, above set out, defines how homestead property descends, the appellants have an interest to have the property pass as homestead.”

King v. Ellison, 648 So. 2d 666 (Fla. 1994). “We find that no conflict exists between section 732.401(1), Florida Statutes (1991), and article X, section 4(c) of the Florida Constitution that would render the statute unconstitutional.”

Cavanaugh v. Cavanaugh, 542 So. 2d 1345 (Fla. 1st DCA 1989). “In circumstances such as the present, where the homestead is not devised as permitted by law and the constitution, and the decedent is survived by a spouse and lineal descendants, the homestead passes outside of the will and thereby outside of probate by virtue of section 732.”

In Re Est. of Finch, 401 So. 2d 1308 (Fla. 1981). “Her petition alleged that the property in question was homestead, that decedent was survived by a spouse and lineal descendants, and that the property should descend as provided in section 732.401(1), Florida Statutes (1977).”

— 732.401(2) — 5 cases

Moxley v. Wickes Corp., 356 So. 2d 785 (Fla. 1978).

Ostyn v. Olympic, 455 So. 2d 1137 (Fla. 2d DCA 1984).

Gross v. Gross, 491 N.W.2d 751 (S.D. 1992).

In re Est. of Yanowsky, 384 So. 2d 1297 (Fla. 2d DCA 1980).

Richard Alan Samad v. Stella Pla, 267 So. 3d 476 (Fla. 2d DCA 2019).

— 732.401(2)(b) — 1 case

Richard Alan Samad v. Stella Pla, 267 So. 3d 476 (Fla. 2d DCA 2019).

— 732.401(2)(c) — 1 case

Richard Alan Samad v. Stella Pla, 267 So. 3d 476 (Fla. 2d DCA 2019).

— 732.401(5) — 1 case

Warner v. Quicken Loans, Inc. (M.D. Fla. 2020).

— 732.401(l) — 1 case

In Re Williams, 427 B.R. 541 (Bankr. M.D. Fla. 2010).

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