Florida Statute 732.401
“Descent of homestead”
What it means
When homestead can't be freely devised (§732.4015), this section says where it goes instead. If the owner is survived by a spouse and descendants, the spouse takes a life estate and the descendants take a vested remainder per stirpes — the spouse lives there for life, the children own what's left.
The spouse isn't stuck with that arrangement. Within 6 months of the death, the surviving spouse may instead elect an undivided one-half interest as a tenant in common with the descendants. The section doesn't reach property held as tenancy by the entireties or joint tenancy with survivorship — that passes automatically.
- Survived by spouse and descendants: the spouse takes a life estate, the descendants a vested remainder per stirpes.
- Alternative: the spouse may elect an undivided one-half interest as a tenant in common with the descendants.
- The election must be filed within 6 months after the decedent's death and recorded with the property's legal description.
- Homestead held as tenancy by the entireties or joint tenancy with survivorship passes outside this section.
- Applies only when a spouse or descendant survives — otherwise the owner could devise the homestead freely (§732.4015).
How it plays out
The life-estate-versus-one-half election is the decision we walk surviving spouses through most often. The default life estate sounds generous, but it saddles the spouse with taxes, insurance, and upkeep on a house the children own on paper. The one-half election can be cleaner — but the 6-month clock is real, and it runs from the date of death, not from when the estate opens. We calendar it the day we're retained, because a missed election locks in the life estate for good.
Where this shows up
Pages on this site where § 732.401 does real work:
Questions people ask
