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Chapter 732 — Wills & Intestate Succession

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))

— What it says
  • 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)

§ 732.401(1)
(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.
§ 732.401(2)(a)-(d)
(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.
§ 732.401(2)(e)
(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:
§ 732.401(3)
(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.
§ 732.401(5)
(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.

— In a Florida probate

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).

Questions people ask

Who gets the house in Florida when there is no will and a surviving spouse?
Homestead that is not devised descends like other intestate property. If the owner leaves a spouse and descendants, § 732.401(1) gives the spouse a life estate and the descendants a vested remainder. The spouse may instead elect an undivided one-half interest within 6 months after the death (§ 732.401(2)). If no descendant survives, the spouse takes the entire intestate estate (§ 732.102(1)).
How long does a surviving spouse have to elect a one-half interest in Florida homestead?
6 months after the decedent's death, and during the spouse's lifetime (§ 732.401(2)(b)). A petition by an attorney in fact or guardian of the spouse's property must also be filed within the 6 months (§ 732.401(2)(c)).

Sources

Last checked: October 17, 2026

The official text
This page is a plain-English summary, verified against the 2026 Florida Statutes — it is not the statute, and it isn't legal advice for your situation.
Read § 732.401

Published by the Probate.Help editorial team.How these pages are written and checked.

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