Determination of Homestead
A petition for a court order that says whether real property was the decedent's protected homestead and who holds it.
An interested person may file a petition to determine the protected homestead status of real property owned by the decedent, or owned by the trustee of a trust described in § 733.707(3), Fla. Stat. (2026) of which the deceased settlor was treated as the owner under § 732.4015, Fla. Stat. (2026) (Fla. Prob. R. 5.405(a) (Oct. 15, 2026 ed.)). The court's order describes the real property and determines whether any of it was protected homestead. If any was, the order names the person or persons entitled to it and defines the interest of each (Fla. Prob. R. 5.405(d)).
Protected homestead is the property described in Art. X, § 4(a)(1), Fla. Const. on which, at the owner's death, the exemption passes to the owner's surviving spouse or heirs under Art. X, § 4(b) (§ 731.201(33), Fla. Stat. (2026)). Outside a municipality the exemption covers up to 160 acres of contiguous land and improvements. Inside a municipality it covers up to one-half acre of contiguous land and is limited to the residence of the owner or the owner's family. Real property owned in tenancy by the entireties or in joint tenancy with rights of survivorship is not protected homestead (§ 731.201(33)).
Protected homestead is not an asset in the personal representative's hands (§ 733.608(1), Fla. Stat. (2026)), and the personal representative has no right to take possession or control of it (§ 733.607(1), Fla. Stat. (2026)). The petition under Fla. Prob. R. 5.405 is its own petition. The rule does not tie it to a particular type of administration.
Requirements for protected homestead
| Requirement | What the law says | Source |
|---|---|---|
| Owner | The exempt property is owned by a natural person. | Art. X, § 4(a), Fla. Const. |
| Outside a municipality | A homestead is exempt to the extent of 160 acres of contiguous land and improvements. The area is not reduced without the owner's consent by later inclusion in a municipality. | Art. X, § 4(a)(1), Fla. Const. |
| Inside a municipality | A homestead is exempt to the extent of one-half acre of contiguous land. The exemption is limited to the residence of the owner or the owner's family. | Art. X, § 4(a)(1), Fla. Const. |
| Passes at death | The exemption inures to the surviving spouse or heirs of the owner. | Art. X, § 4(b), Fla. Const.; § 731.201(33) |
| Form of title | Real property owned in tenancy by the entireties or in joint tenancy with rights of survivorship is not protected homestead. The descent rule for homestead does not apply to that property. | § 731.201(33); § 732.401(5) |
| Property in a trust | The grantor of a trust described in § 733.707(3) is treated as the owner of homestead held in it. A disposition by that trust of the portion that would be the grantor's homestead is a devise. | § 732.4015(2); Fla. Prob. R. 5.405(a) |
| Creditors | The exemption is from forced sale under process of any court. Three exceptions are stated: taxes and assessments on the property, obligations contracted for its purchase, improvement or repair, and obligations contracted for labor performed on the realty. | Art. X, § 4(a), Fla. Const. |
Who receives protected homestead
| Situation | What the law says | Source |
|---|---|---|
| A spouse or minor child survives | The homestead is not subject to devise. It may be devised to the owner's spouse if there is no minor child. | Art. X, § 4(c), Fla. Const.; § 732.4015(1) |
| Not devised, spouse survives with descendants | The spouse takes a life estate, with a vested remainder to the descendants in being at the death, per stirpes. | § 732.401(1) |
| Not devised, spouse survives with no descendants | The homestead descends as other intestate property. The spouse's intestate share is the entire intestate estate when there is no surviving descendant. | § 732.401(1); § 732.102(1), Fla. Stat. (2026) |
| Not devised, no spouse | The homestead descends as other intestate property. | § 732.401(1) |
| Spouse's election | In place of the life estate, the spouse may elect an undivided one-half interest as a tenant in common, with the other half vesting in the descendants. The election is made within 6 months after the death and during the spouse's lifetime, by recording a notice of election, and it is irrevocable. | § 732.401(2)(b), (d) and (e) |
| Election by an agent or guardian | An attorney in fact or guardian of the property may make the election with court approval, after the court finds it is in the spouse's best interests. The petition for approval is filed within 6 months after the death. | § 732.401(2)(a) and (c) |
| Spouse's waiver | The surviving spouse's right to homestead may be waived, wholly or partly, by a written agreement signed in the presence of two subscribing witnesses. A waiver signed by a Florida resident requires the witnesses. | § 732.702(1), Fla. Stat. (2026) |
| Disclaimed life estate | If the spouse's life estate is disclaimed under chapter 739, the interests of the descendants may not be divested. | § 732.401(4) |
What the petition states
| Item | What the petition states | Source |
|---|---|---|
| Who may file | An interested person. The petition is verified by the petitioner. | Fla. Prob. R. 5.405(a) and (b); Fla. Prob. R. 5.020(e) |
| Petitioner's interest | The petitioner's interest in the determination of protected homestead status. | Fla. Prob. R. 5.405(b)(1) |
| Death and domicile | The date of death and the county of the decedent's domicile at death. | Fla. Prob. R. 5.405(b)(2) and (3) |
| Will | Whether the decedent died testate or intestate. | Fla. Prob. R. 5.405(b)(4) |
| Surviving spouse | Whether there is a surviving spouse and the spouse's name; whether the spouse waived homestead rights and, if so, the method of waiver. | Fla. Prob. R. 5.405(b)(5) |
| Descendants | The names of surviving descendants, and whether the decedent had any minor children at death, identifying each minor child by name and year of birth. | Fla. Prob. R. 5.405(b)(6) |
| The property | A legal description of the property on which protected homestead is claimed. | Fla. Prob. R. 5.405(b)(7) |
| Domicile of the property | Whether the property was the decedent's domicile or, if not, whether it was in a municipality and was the domicile of a member of the decedent's family. | Fla. Prob. R. 5.405(b)(8) |
| Title | How the real property was titled at the decedent's death. | Fla. Prob. R. 5.405(b)(9) |
| Other facts | Any other facts in support of the petition. | Fla. Prob. R. 5.405(b)(10) |
How the petition proceeds
- 01
File a verified petition
An interested person files the petition with the contents in Fla. Prob. R. 5.405(b). Verification is by oath or affirmation or by the statement in Fla. Prob. R. 5.020(e).
- 02
Serve formal notice
The petition is served on interested persons by formal notice (Fla. Prob. R. 5.405(c)). Formal notice requires a copy of the pleading and a notice to serve written defenses within 20 days after service (Fla. Prob. R. 5.040(a)(1)).
- 03
Court enters the order
The order describes the real property and determines whether any of it was protected homestead. If any was, it names the persons entitled and defines each interest (Fla. Prob. R. 5.405(d)).
- 04
Record
Recording is required for petitions regarding real estate (§ 28.2401(4), Fla. Stat. (2026)). If a court determines that property is not protected homestead, a personal representative's preservation lien is deemed released on recording of the order in the official records of the county (§ 733.608(11)).
The personal representative and homestead
If property that reasonably appears to be protected homestead is not occupied by a person who appears to have an interest in it, the personal representative may, but need not, take possession of it to preserve, insure and protect it for the person with an interest, pending a determination of its homestead status. Rents and revenues collected are for the account of the heir or devisee, and the personal representative has no duty to rent or otherwise make the property productive (§ 733.608(2)).
A personal representative who spends funds or incurs obligations to preserve, maintain, insure or protect that property is entitled to a lien on it and its revenues. The court adjudicates the amount of the debt on petition after formal notice. The persons with an interest in the homestead have no personal liability for the debt (§ 733.608(3)). The lien attaches as of the date and time a notice of lien is recorded (§ 733.608(4)), and it ends on the earliest of a recorded satisfaction or release, discharge of the personal representative, one year from recording unless a proceeding to determine or enforce the debt has been filed, or an order releasing it (§ 733.608(5)).
Property tax homestead exemption
The property tax exemption is a separate benefit. It goes to a person who, on January 1, holds legal or beneficial title to real property in Florida and in good faith makes it a permanent residence (§ 196.031(1)(a), Fla. Stat. (2026)). The contents required for a petition under Fla. Prob. R. 5.405(b) do not include a property tax exemption.
Under the assessment limit, property is assessed at just value as of January 1 of the year after a change of ownership, except for listed transfers. They include a transfer by operation of law to a surviving spouse or minor child under § 732.401 (§ 193.155(3)(a), Fla. Stat. (2026)).
Points that change the result
- Joint ownership. Real property held in tenancy by the entireties or in joint tenancy with rights of survivorship is not protected homestead (§ 731.201(33)).
- Acreage and location limits. Outside a municipality the exemption is limited to 160 acres. Inside a municipality it is limited to one-half acre and to the residence of the owner or the owner's family (Art. X, § 4(a)(1), Fla. Const.).
- A devise to someone other than the spouse. The homestead is not subject to devise when the owner is survived by a spouse or minor child, except to the spouse if there is no minor child (§ 732.4015(1)).
- The spouse's 6-month election period. The election of a one-half interest is made within 6 months after the death and cannot be revoked (§ 732.401(2)(b) and (d)).
- A waiver by the spouse. A signed written waiver with two subscribing witnesses can waive homestead rights, and the petition states whether a waiver was made (§ 732.702(1); Fla. Prob. R. 5.405(b)(5)).
- Homestead held in a trust. The grantor of a trust described in § 733.707(3) is treated as the owner, and the trust's disposition of that portion is a devise (§ 732.4015(2)).
- The petition is permissive. The rule says an interested person may file, and the order is the document that names the persons entitled and their interests (Fla. Prob. R. 5.405(a) and (d)).
Frequently asked questions
What is a petition to determine homestead?+−
Who can file the petition?+−
What property is protected homestead?+−
Can protected homestead be left to anyone by will?+−
What does a surviving spouse receive?+−
Can creditors reach protected homestead?+−
Is a court order required before protected homestead passes?+−
What happens to homestead held in a revocable trust?+−
Does the property tax homestead exemption prove the property is protected homestead?+−
What does the court charge for the petition?+−
Does the homestead count toward the $150,000 summary administration limit?+−
The order under Fla. Prob. R. 5.405(d) describes the real property, determines whether any of it was protected homestead, and names the persons entitled and their interests.
Sources
Each source below was read on the date shown. Statute links open the 2026 edition on the Florida Senate site. The Florida Probate Rules edition is the one the Florida Bar posted on October 15, 2026.
- Fla. Prob. R. 5.405, Proceedings to determine protected homestead status of real property. The Florida Bar, Florida Probate Rules (Oct. 15, 2026 ed.). Petition, contents, formal notice and order.
- Fla. Prob. R. 5.040, Notice. The Florida Bar, Florida Probate Rules (Oct. 15, 2026 ed.). Formal notice procedure; 20 days to serve written defenses.
- Fla. Prob. R. 5.020, Pleadings; verification; motions. The Florida Bar, Florida Probate Rules (Oct. 15, 2026 ed.). Verification statement.
- Art. X, § 4, Fla. Const., Homestead; exemptions. The Florida Senate, Florida Constitution. Exemption from forced sale, area limits, exceptions, passage to the surviving spouse or heirs, and limit on devise.
- § 731.201(33), Fla. Stat. (2026), General definitions. The Florida Senate. Definition of protected homestead; entireties and joint tenancy exclusion. Plain-English page on this site.
- § 732.4015, Fla. Stat. (2026), Devise of homestead. The Florida Senate. Limits on devise; trust grantor treated as owner; disposition by trust is a devise. Plain-English page on this site.
- § 732.401, Fla. Stat. (2026), Descent of homestead. The Florida Senate. Life estate and remainder; one-half election and its timing; notice of election; entireties and joint tenancy exclusion. Plain-English page on this site.
- § 732.102(1), Fla. Stat. (2026), Spouse’s share of intestate estate. The Florida Senate. Spouse's intestate share when there is no surviving descendant. Plain-English page on this site.
- § 732.702(1), Fla. Stat. (2026), Waiver of spousal rights. The Florida Senate. Waiver of homestead by written agreement with two subscribing witnesses. Plain-English page on this site.
- § 733.707(3), Fla. Stat. (2026), Order of payment of expenses and obligations. The Florida Senate. Revocable trust described in subsection (3). Plain-English page on this site.
- § 733.608(2), Fla. Stat. (2026), General power of the personal representative. The Florida Senate. Protected homestead is not an estate asset; possession pending determination; lien; release on order. Plain-English page on this site.
- § 733.607, Fla. Stat. (2026), Possession of estate. The Florida Senate. Personal representative does not take possession of protected homestead. Plain-English page on this site.
- § 735.201, Fla. Stat. (2026), Summary administration; nature of proceedings. The Florida Senate. Value limit excludes property exempt from claims of creditors. Plain-English page on this site.
- § 196.031(1)(a), Fla. Stat. (2026), Exemption of homesteads. The Florida Senate. Property tax homestead exemption requires title and permanent residence on January 1. Plain-English page on this site.
- § 193.155(3)(a), Fla. Stat. (2026), Homestead assessments. The Florida Senate. Reassessment at just value after a change of ownership; exceptions.
- § 28.2401(1) and (4), Fla. Stat. (2026), Service charges and filing fees in probate matters. The Florida Senate. Clerk fee schedule names no line for this petition; paragraph (a) lists up to $230 for opening an estate of one document or more, including petitions; recording of petitions regarding real estate.
General information, not legal advice. The official text controls. Disclaimer.
