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Real property the decedent owned that may be protected homestead

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.

The tests

Requirements for protected homestead

RequirementWhat the law saysSource
OwnerThe exempt property is owned by a natural person.Art. X, § 4(a), Fla. Const.
Outside a municipalityA 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 municipalityA 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 deathThe exemption inures to the surviving spouse or heirs of the owner.Art. X, § 4(b), Fla. Const.; § 731.201(33)
Form of titleReal 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 trustThe 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)
CreditorsThe 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.
The table restates the Constitution and statute text in plain words. The official text controls.
Who holds it

Who receives protected homestead

SituationWhat the law saysSource
A spouse or minor child survivesThe 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 descendantsThe 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 descendantsThe 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 spouseThe homestead descends as other intestate property.§ 732.401(1)
Spouse's electionIn 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 guardianAn 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 waiverThe 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 estateIf the spouse's life estate is disclaimed under chapter 739, the interests of the descendants may not be divested.§ 732.401(4)
The table restates the statutes in plain words. The official text controls.
The petition

What the petition states

ItemWhat the petition statesSource
Who may fileAn 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 interestThe petitioner's interest in the determination of protected homestead status.Fla. Prob. R. 5.405(b)(1)
Death and domicileThe date of death and the county of the decedent's domicile at death.Fla. Prob. R. 5.405(b)(2) and (3)
WillWhether the decedent died testate or intestate.Fla. Prob. R. 5.405(b)(4)
Surviving spouseWhether 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)
DescendantsThe 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 propertyA legal description of the property on which protected homestead is claimed.Fla. Prob. R. 5.405(b)(7)
Domicile of the propertyWhether 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)
TitleHow the real property was titled at the decedent's death.Fla. Prob. R. 5.405(b)(9)
Other factsAny other facts in support of the petition.Fla. Prob. R. 5.405(b)(10)
The table restates the rule text in plain words. The official text controls.
The steps

How the petition proceeds

  1. 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).

  2. 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)).

  3. 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)).

  4. 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)).

Pending the order

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)).

Taxes

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)).

Watch for

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)).
Questions

Frequently asked questions

What is a petition to determine homestead?+−
It is a verified petition by an interested person asking the court to determine whether real property the decedent owned was protected homestead. The order describes the property, makes the determination and, if the property was protected homestead, names the persons entitled and defines each interest (Fla. Prob. R. 5.405(a), (b) and (d) (Oct. 15, 2026 ed.)).
Who can file the petition?+−
An interested person (Fla. Prob. R. 5.405(a) (Oct. 15, 2026 ed.)). The rule does not require that a personal representative be appointed first.
What property is protected homestead?+−
Property described in Art. X, § 4(a)(1), Fla. Const. on which the exemption passes at death to the surviving spouse or heirs (§ 731.201(33), Fla. Stat. (2026)). That means up to 160 acres outside a municipality, or up to one-half acre inside a municipality limited to the residence of the owner or the owner's family. Property held by the entireties or as joint tenants with rights of survivorship is not protected homestead.
Can protected homestead be left to anyone by will?+−
Not when the owner is survived by a spouse or minor child. In that case the homestead is not subject to devise, except that it may be devised to the owner's spouse if there is no minor child (§ 732.4015(1), Fla. Stat. (2026); Art. X, § 4(c), Fla. Const.).
What does a surviving spouse receive?+−
If the homestead is not devised and the decedent is survived by a spouse and one or more descendants, the spouse takes a life estate and the descendants take a vested remainder per stirpes. The spouse may instead elect an undivided one-half interest as a tenant in common within 6 months after the death (§ 732.401(1) and (2), Fla. Stat. (2026)). With no descendants, the homestead descends as other intestate property, and the spouse's intestate share is the entire intestate estate (§ 732.401(1); § 732.102(1), Fla. Stat. (2026)).
Can creditors reach protected homestead?+−
Generally not. The exemption is from forced sale under process of any court, with three exceptions: 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.). Protected homestead is not an asset in the personal representative's hands for payment of claims (§ 733.608(1), Fla. Stat. (2026)).
Is a court order required before protected homestead passes?+−
The Constitution states that the exemption inures to the surviving spouse or heirs (Art. X, § 4(b), Fla. Const.). Fla. Prob. R. 5.405(a) (Oct. 15, 2026 ed.) says an interested person may file a petition, and Fla. Prob. R. 5.405(d) sets what the order contains. No statute or rule read for this page makes the petition mandatory in every estate.
What happens to homestead held in a revocable trust?+−
The grantor of a trust described in § 733.707(3), Fla. Stat. (2026) is treated as the owner of the homestead held in it, and a disposition by the trust of that portion is a devise (§ 732.4015(2), Fla. Stat. (2026)). Fla. Prob. R. 5.405(a) lets an interested person petition on real property owned by the trustee of that kind of trust.
Does the property tax homestead exemption prove the property is protected homestead?+−
No. The property tax exemption depends on title and permanent residence on January 1 (§ 196.031(1)(a), Fla. Stat. (2026)). The petition contents in Fla. Prob. R. 5.405(b) ask about domicile, titling and family, and do not list the tax exemption.
What does the court charge for the petition?+−
No line in § 28.2401(1), Fla. Stat. (2026) names a petition to determine protected homestead. Paragraph (a) lists a fee of up to $230 for opening an estate of one document or more, including petitions, and the statute does not say whether a petition filed inside an open estate is charged separately from one filed alone. Confirm the fee with the clerk of the county where the estate is open. The statute also requires recording of petitions regarding real estate (§ 28.2401(4)).
Does the homestead count toward the $150,000 summary administration limit?+−
No. The limit applies to the value of the estate subject to administration in Florida less property exempt from the claims of creditors (§ 735.201(2), Fla. Stat. (2026)), and protected homestead is real property exempt under Art. X, § 4(a)(1), Fla. Const. (§ 731.201(33)).
In short

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.

Last checked: October 19, 2026

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.

  1. 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.
  2. 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.
  3. Fla. Prob. R. 5.020, Pleadings; verification; motions. The Florida Bar, Florida Probate Rules (Oct. 15, 2026 ed.). Verification statement.
  4. 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.
  5. § 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.
  6. § 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.
  7. § 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.
  8. § 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.
  9. § 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.
  10. § 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.
  11. § 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.
  12. § 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.
  13. § 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.
  14. § 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.
  15. § 193.155(3)(a), Fla. Stat. (2026), Homestead assessments. The Florida Senate. Reassessment at just value after a change of ownership; exceptions.
  16. § 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.

Rachel Brannan Schadt, Esq.
Your attorney
Rachel Brannan Schadt, Esq.

Florida probate and estate attorney. Florida Bar #127500, admitted 2017. Third-generation Florida attorney and Sarasota native. Florida State University; Western Michigan University Cooley Law School. Admitted to the U.S. District Courts for the Northern, Middle and Southern Districts of Florida.

Page text published by the Probate.Help editorial team.

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