Florida Statute 732.401
“Descent of homestead”
What it means
This section governs homestead that is not devised as the law and the constitution allow. That homestead descends in the same manner as other intestate property. If the decedent is survived by a spouse and one or more descendants, the spouse takes a life estate and the descendants in being at the death take a vested remainder, per stirpes. (§ 732.401(1))
Instead of the life estate, the surviving spouse may elect an undivided one-half interest as a tenant in common; the other half vests in the descendants in being at the death, per stirpes. The election must be made within 6 months after the death and during the spouse's lifetime, is irrevocable, and is made by filing a notice of election with the legal description for recording in the county or counties where the property is located. An attorney in fact or guardian of the property may make it only with court approval, on a petition filed within the same 6 months. (§ 732.401(2))
The section does not apply to property the decedent owned in tenancy by the entireties or joint tenancy with rights of survivorship. (§ 732.401(5))
- With a surviving spouse and descendants, the spouse takes a life estate and the descendants in being at death take a vested remainder per stirpes (§ 732.401(1)).
- In place of the life estate, the spouse may elect an undivided one-half interest as a tenant in common; the other half vests in the descendants (§ 732.401(2)).
- The election must be made within 6 months after death and during the spouse's lifetime; the time may not be extended except by a timely court petition (§ 732.401(2)(b)).
- A timely petition by an attorney in fact or guardian extends the time for at least 30 days after the order allowing the election (§ 732.401(2)(c)).
- The election is irrevocable and is made by a recorded notice of election containing the legal description (§ 732.401(2)(d), (e)).
- Property held by the entireties or in joint tenancy with survivorship is outside the section (§ 732.401(5)).
Text of the statute (2026)
(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:
(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.
(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.
Excerpts are the subsections the summary relies on. Read the full official text of § 732.401.
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.
How it applies
The two interests differ in how expenses are shared. Until an election is made, expenses of owning the homestead are allocated between the surviving spouse, as life tenant, and the descendants, as remaindermen, under chapter 738. After an election, they are allocated between the spouse and the descendants as tenants in common in proportion to their shares, effective on the date the election is filed for recording (§ 732.401(3)). The election is irrevocable once made (§ 732.401(2)(d)), and the notice of election must be in substantially the form set out in § 732.401(2)(e).
Where this shows up
Pages on this site where § 732.401 does real work:
- Do I need probate in Florida? Which assets and estates skip it
- Florida probate timeline 2026: deadlines and steps from death to discharge
- What Florida homestead protects: tax exemption, creditor protection and inheritance rules
- Florida intestate succession: who inherits when there is no will, the spouse's share, descendants, parents, siblings and other relatives, the homestead, who is not an heir and steps to settle the estate
- Florida spousal elective share: 30 percent of the elective estate, what the elective estate includes and leaves out, the filing deadline, waiver, the court process and a worked example
- Selling an inherited Florida home: who can sign, probate steps, mortgage and taxes
- Lady bird deed in Florida: how an enhanced life estate deed works
- Out-of-state heirs and Florida property: who can serve, what happens to title, taxes and selling
- Blended families and estate planning in Florida: homestead, elective share, stepchildren and trusts
- Disinheriting a child in Florida: what the law allows, protected homestead and how to draft it
Questions people ask
Sources
- Fla. Stat. § 732.401 (2026), Online Sunshine / Florida Senate (Subsection (1): the surviving spouse shall take a life estate in the homestead; subsection (2)(b): The election must be made within 6 months after the decedent’s death)
- Fla. Stat. § 732.4015 (2026), Online Sunshine / Florida Senate (Homestead may not be devised if a spouse or minor child survives: the homestead shall not be subject to devise if the owner is survived by a spouse or a minor child)
- Fla. Stat. § 732.102 (2026), Online Sunshine / Florida Senate (Spouse's share of intestate estate: If there is no surviving descendant of the decedent, the entire intestate estate.)
Last checked: October 17, 2026
Published by the Probate.Help editorial team.How these pages are written and checked.