What Assets Are Exempt from Probate in Florida?

What assets are exempt from probate in Florida is one of the most common questions families ask after a death, and it is also one of the most commonly answered wrongly. Under Florida Statute § 732.402, Florida exempt property consists of household furniture, furnishings and appliances up to a net value of $20,000, two motor vehicles, all qualified tuition programs including Florida Prepaid, and certain death benefits for teachers and school administrators. But exempt property in Florida probate is not the same thing as property that avoids probate, and the difference decides who gets paid.

Almost every page you will read on this subject collapses those two ideas into one list. They are different. Exempt property is part of the probate estate. It is inventoried, it is administered, and it has to be claimed by a petition filed with the court within a deadline that most families never hear about. What it is exempt from is creditors — not the process. Assets that genuinely skip probate altogether are a separate category: trust assets, survivorship property, and accounts with a living named beneficiary.

Florida probate exempt property is one of the most misunderstood parts of the Probate Code, and searches for the Florida exempt property statute, for probate exemptions generally and for exempt personal property all land on the same four categories set out below.

This page covers both, keeps them apart, and cites the statute for every figure. It also covers the four-month deadline that silently erases the exempt property right, the subsection that pulls exempt property off the top before anyone else’s share is calculated, the ordinary will clause that can destroy a surviving spouse’s claim without anyone noticing, and how Florida homestead really passes — which is the part families get wrong most often and pay for most heavily.

Written and reviewed by Jose M. Lorenzo, Jr., Esq., Florida Bar No. 107002 — Lorenzo Law, Coral Gables and Fort Lauderdale. Florida probate, homestead and estate litigation. Last reviewed 7 September 2026. Every statute on this page links to its official text on flsenate.gov, and every case cited has been checked for current status.

What Assets Are Exempt from Probate in Florida? The Short Answer

Florida law gives the surviving spouse — or, if there is no surviving spouse, the decedent’s children — the right to take four categories of property out of the estate ahead of creditors. This is what the Florida Probate Code calls exempt property, and it is governed by § 732.402.

What does exempt property mean? The exempt property definition in Florida is narrower than most families expect. It does not mean property that skips probate, and it is not everything the household wants to keep. An example makes it concrete: the couch, the refrigerator and the two cars in the driveway are examples of exempt property; the coin collection in the closet is not.

Category	Statute	Limit	Who takes it
Household furniture, furnishings and appliances in the deceased person’s usual place of abode	§ 732.402(2)(a)	Up to $20,000 net value as of the date of death	Surviving spouse, or children if none
Motor vehicles held in the deceased person’s name and regularly used by the family as personal vehicles	§ 732.402(2)(b)	Two vehicles, neither over 15,000 lbs gross vehicle weight. No dollar cap.	Surviving spouse, or children if none
Qualified tuition programs under IRC § 529, including Florida Prepaid	§ 732.402(2)(c)	All — no dollar cap in the statute	Surviving spouse, or children if none
Death benefits paid under § 112.1915 (teachers and school administrators)	§ 732.402(2)(d)	All — no dollar cap in the statute	Surviving spouse, or children if none

Two things about that table matter more than the categories themselves. First, exempt property is exempt from all claims against the estate except perfected security interests — so a car lender keeps its lien, but an ordinary creditor cannot reach the vehicle. Second, none of it is automatic. The right is waived unless someone files a petition within the deadline covered below.

Household furniture, furnishings and appliances — up to $20,000

Section 732.402(2)(a) exempts household furniture, furnishings and appliances in the deceased person’s usual place of abode, up to a net value of $20,000 as of the date of death.

Every word in that sentence carries weight, and competing pages routinely drop one of them:

• Net value, not gross. If the furniture is encumbered, the encumbrance reduces the figure.
• As of the date of death. What the items are worth two years later during a dispute is irrelevant.
• Usual place of abode. Furniture in a rental property, a storage unit or a second home is a different question from furniture in the home the deceased person actually lived in.
• Household furniture, furnishings and appliances — not personal property generally.

That last limit is the one that surprises families. A collection is not household furnishings. Baseball cards, coins, watches, comics, wine, firearms and similar items fall outside this exemption no matter where in the house they sit, which means they remain available to the estate’s creditors. Here is how Florida probate treats an inherited collection, including how it gets valued and the one letter a beneficiary can send to find out how that number was reached.

Two motor vehicles — and no dollar limit at all

Section 732.402(2)(b) exempts two motor vehicles as defined in § 316.003, neither having a gross vehicle weight in excess of 15,000 pounds, held in the deceased person’s name and regularly used by the decedent or members of the decedent’s immediate family as their personal motor vehicles.

There is no dollar cap on the two vehicles. This is worth stating plainly because at least one widely-read Florida page publishes a “$2,000 combined net value” limit on exempt vehicles. That figure appears nowhere in § 732.402 or in its legislative history. The $20,000 figure belongs to subsection (2)(a) and applies only to household furnishings. Two paid-off luxury cars, regularly driven by the family, can both pass free of ordinary creditor claims.

What the statute does require is use. The vehicle must have been regularly used as a personal vehicle by the deceased person or the immediate family. In In re Estate of Corbin, 603 So. 2d 127 (Fla. 1st DCA 1992), affirmed on a fuller record at 645 So. 2d 39 (Fla. 1st DCA 1994), a motor home and a travel trailer were both denied exempt status because neither was shown to have been used that way. The court was careful about what it was not deciding: it expressly declined to hold that a motor home could never qualify, acknowledging that someone might genuinely use one as a personal vehicle. The holding is about proof of use, not about categories of vehicle.

Qualified tuition programs, including Florida Prepaid

Section 732.402(2)(c) exempts all qualified tuition programs authorized by § 529 of the Internal Revenue Code, as amended, expressly including Florida Prepaid College Trust Fund advance payment contracts under § 1009.98 and participation agreements under § 1009.981.

The phrase as amended does quiet work: the exemption tracks changes to federal § 529 automatically, so the category grows when Congress expands 529 plans without Florida having to amend anything.

One correction worth making, because a national finance site publishes the opposite. A 529 plan is not an asset that “automatically transfers to the named beneficiary without court involvement.” The account owner was the deceased person; the account is part of the estate. What § 732.402(2)(c) does is protect that account from the estate’s creditors. It is creditor protection, not a transfer mechanism, and it does not by itself redirect the plan away from the student named on it. Whether a surviving spouse’s exempt property claim can override a designated beneficiary who is also a child of the deceased person is a question no Florida appellate court has answered.

Death benefits for teachers and school administrators

Section 732.402(2)(d) exempts all benefits paid pursuant to § 112.1915. This is the narrowest category and almost nobody explains it, so here is what it actually covers.

Section 112.1915 is titled Teachers and school administrators; death benefits. It reaches teachers (instructional staff personnel as described in § 1012.01(2)) and school administrators (as described in § 1012.01(3)) — and it applies only where the death results from an unlawful and intentional act of violence committed against them while performing their duties or because of their position. The benefits include $75,000 to the beneficiary, $1,000 toward funeral and burial expenses, health insurance premiums for the surviving spouse until remarriage and for dependent children, and a waiver of tuition and fees for 120 credit hours.

It does not cover first responders. Police officers, firefighters, EMTs and correctional officers are not within § 112.1915, and any page telling you otherwise is wrong. Public employees generally should look instead at Florida Retirement System beneficiary designations, which are a different body of law.

Exempt From Creditors Is Not the Same as Exempt From Probate

This is the distinction the rest of the internet gets wrong, and getting it right changes what a family actually does.

Exempt property under § 732.402 is probate property. It is owned by the deceased person at death. It goes on the inventory. The personal representative — the person most people call the executor — takes possession of it. It is administered in the probate case. What subsection (3) does is shield it from claims: “Exempt property shall be exempt from all claims against the estate except perfected security interests thereon.” The creditors cannot touch it. The court still has to hand it over, and only after somebody asks.

Non-probate assets are a different animal. They never enter the estate at all, because ownership passes by contract, by titling or by trust the instant the owner dies. Nobody petitions for them. There is no deadline. The bank or the transfer agent simply pays the person named.

Passes outside probate entirely	Probate asset, but protected from creditors	Depends entirely on the titling
Assets titled in a funded revocable trust	Household furnishings up to $20,000 (§ 732.402(2)(a))	Real estate — homestead or not
Payable-on-death and transfer-on-death accounts	Two motor vehicles (§ 732.402(2)(b))	Joint accounts with no survivorship language
Life insurance and retirement accounts with a living named beneficiary	529 and Florida Prepaid plans (§ 732.402(2)(c))	Life insurance payable to “my estate”
Property held with rights of survivorship, or as tenancy by the entireties between spouses	§ 112.1915 death benefits (§ 732.402(2)(d))	Property under an enhanced life estate (lady bird) deed
Property under a recorded lady bird deed	Family allowance up to $18,000 (§ 732.403)	A vehicle titled to two people with “and” rather than “or”

The practical consequence: a family that assumes the middle column takes care of itself loses it. A family that assumes the left column needs a court order wastes money opening a probate that was never required. Whether probate is necessary at all — and whether the estate qualifies for summary administration rather than a full formal administration — is a separate question worth answering before anything else.

Is real property exempt property, and is there a “wildcard”?

Two questions that come up constantly, both with short answers.

No real property is exempt property under § 732.402. All four categories are personal property. People searching for real property exempt from probate in Florida are almost always asking about homestead, which is a separate protection under a separate statute, covered in full below.

There is no Florida probate wildcard exemption. Section 732.402 has no catch-all, and the four categories are the whole of it. What does exist is a much smaller and entirely separate protection in the Florida Constitution: article X, § 4(a)(2) exempts personal property to the value of $1,000. That $1,000 constitutional figure is not the furnishings limit, and a widely-read Florida guide currently publishes it as though it were — stating the household personal property exemption as $1,000 when the statutory figure is $20,000.

Florida Statute 732.402, in Full

Because people search for the statute itself, here is Florida Statute 732.402 as it currently reads. You will see it cited several ways — Fla. Stat. § 732.402, F.S. 732.402, or simply section 732.402 of the Florida Probate Code — and every one of them points to this single section. The last substantive amendment was s. 81, ch. 2016-239.

732.402 Exempt property.—

(1) If a decedent was domiciled in this state at the time of death, the surviving spouse, or, if there is no surviving spouse, the children of the decedent shall have the right to a share of the estate of the decedent as provided in this section, to be designated “exempt property.”

(2) Exempt property shall consist of:

(a) Household furniture, furnishings, and appliances in the decedent’s usual place of abode up to a net value of $20,000 as of the date of death.

(b) Two motor vehicles as defined in s. 316.003, which do not, individually as to either such motor vehicle, have a gross vehicle weight in excess of 15,000 pounds, held in the decedent’s name and regularly used by the decedent or members of the decedent’s immediate family as their personal motor vehicles.

(c) All qualified tuition programs authorized by s. 529 of the Internal Revenue Code of 1986, as amended, including, but not limited to, the Florida Prepaid College Trust Fund advance payment contracts under s. 1009.98 and the Florida Prepaid College Trust Fund participation agreements under s. 1009.981.

(d) All benefits paid pursuant to s. 112.1915.

(3) Exempt property shall be exempt from all claims against the estate except perfected security interests thereon.

(4) Exempt property shall be in addition to protected homestead, statutory entitlements, and property passing under the decedent’s will or by intestate succession.

(5) Property specifically or demonstratively devised by the decedent’s will to any devisee shall not be included in exempt property. However, persons to whom property has been specifically or demonstratively devised and who would otherwise be entitled to it as exempt property under this section may have the court determine the property to be exempt from claims, except for perfected security interests thereon, after complying with the provisions of subsection (6).

(6) Persons entitled to exempt property shall be deemed to have waived their rights under this section unless a petition for determination of exempt property is filed by or on behalf of the persons entitled to the exempt property on or before the later of the date that is 4 months after the date of service of the notice of administration or the date that is 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of the will or involving any other matter affecting any part of the estate subject to this section.

(7) Property determined as exempt under this section shall be excluded from the value of the estate before residuary, intestate, or pretermitted or elective shares are determined.

One word in subsection (4) deserves a note, because it is the source of a widely repeated error. The statute says “statutory entitlements.” Older versions said “statutory exemptions,” and a well-known 2010 Florida Bar Journal article built an argument on that older wording — that the phrase swept the whole Chapter 222 creditor-exemption scheme into probate. The wording changed, and that reading no longer holds. “Statutory entitlements” is a term of art for probate-specific rights like the family allowance, not a doorway to Chapter 222. Anyone still publishing the older theory is quoting a statute that no longer exists.

Who Can Claim Exempt Property in Florida

Section 732.402(1) is narrow, and every limitation in it matters.

The surviving spouse comes first

If there is a surviving spouse, the exempt property right is the spouse’s. Not the children’s, not the beneficiaries’ generally, and not the personal representative’s to give away. This holds even in a second marriage where the spouse is not the parent of the deceased person’s children — a fact pattern that produces a great deal of Florida probate litigation.

Children take only if there is no surviving spouse

The children’s right is conditional. It arises only where there is no surviving spouse. Adult children qualify; there is no age requirement anywhere in § 732.402.

Grandchildren are not “children” — and this one costs families everything

Here is a trap that appears on no other Florida page, and it can wipe out the exempt property right completely.

The Florida Probate Code defines “child” at § 731.201(3), and the definition expressly excludes “any person who is only a stepchild, a foster child, a grandchild, or a more remote descendant.” There is no representation and no per stirpes mechanism in § 732.402(1). A grandchild does not step into a predeceased parent’s shoes for exempt property purposes.

So: if the deceased person left no surviving spouse, and all of their children died before them, and only grandchildren survive — nobody is entitled to exempt property at all. The grandchildren still inherit under the intestacy statute as descendants, but they inherit it as ordinary estate property, fully exposed to the estate’s creditors. The furniture, the cars and the 529 plans lose their shield entirely.

That is a genuinely different outcome driven by a definition buried in a section most people never read, and it is the kind of thing worth checking before assuming a family is protected.

The deceased person must have been a Florida resident

Subsection (1) opens with a condition: “If a decedent was domiciled in this state at the time of death.”

A person who died domiciled elsewhere gets no Florida exempt property — not even as to furniture and vehicles physically sitting in Florida, and not even where a Florida ancillary probate is opened to deal with Florida assets. For a state full of snowbirds, part-year residents and recent arrivals who never changed their domicile, this is not a technicality. It is often the first question worth asking, because it determines whether this entire body of protection is available.

The Four-Month Deadline That Erases the Right

This is the most consequential paragraph on the page, and it appears on no competing Florida page we could find.

Section 732.402(6) is not written as a deadline. It is written as a waiver, which is what makes it dangerous:

“Persons entitled to exempt property shall be deemed to have waived their rights under this section unless a petition for determination of exempt property is filed by or on behalf of the persons entitled to the exempt property on or before the later of the date that is 4 months after the date of service of the notice of administration or the date that is 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of the will…”

Nobody has to object. No creditor has to fight you. The right simply lapses, and nothing in the process sends a reminder.

Right	Deadline	Runs from
Exempt property (§ 732.402(6))	Later of 4 months or 40 days	Service of the notice of administration / termination of a will proceeding
Family allowance (§ 732.403)	During administration	Opening of the estate
Homestead one-half election (§ 732.401(2))	6 months, not extendable except by a guardian or attorney in fact	Death — not service of anything
Elective share (§ 732.2135)	Earlier of 6 months or 2 years	Service of the notice of administration / death

Note how differently these run. The exempt property clock starts on service. The homestead election clock starts on death. A family that calendars one and assumes the other works the same way will miss it.

What happens if you miss it

The right is gone. In Paredes v. McLucas, 561 So. 2d 439 (Fla. 5th DCA 1990), the Fifth District confirmed that failing to file within the prescribed time limits waives the right to receive exempt property.

Because the consequence is waiver rather than a loss of the court’s jurisdiction, people sometimes assume a judge can simply excuse it. Be careful with that assumption. Florida courts have held that the probate rule allowing enlargement of time for excusable neglect applies to deadlines set by the rules — not to deadlines set by statute. Section 732.402(6) is statutory. No Florida appellate decision has held that equitable estoppel can extend it once it has properly started running.

When the clock has not started at all

There is one real answer for a family that has already run past four months, and it is a good one.

The deadline never begins until the notice of administration is properly served. In In re Estate of Dubin, 536 So. 2d 1186 (Fla. 4th DCA 1989), the Fourth District held a petition timely where the personal representative had failed to serve the notice of administration on the surviving spouse as required. If nobody served you, your clock never started.

This is worth checking in every case where the deadline appears to have passed. Improper service, service on the wrong person, and service that never happened at all are more common than they should be, and the file will show it.

A will contest extends the deadline

The 40-day prong exists precisely so that a fight over the will does not run out the clock on the family’s exempt property. It runs from the termination of any proceeding involving the construction, admission to probate or validity of the will.

Work an example. Notice of administration is served on 1 March, so the four-month date is 1 July. A will contest is filed in April and finally resolved on 20 September. The 40-day date is 30 October. Because the statute says the later of, the deadline is 30 October — not 1 July. Calendar both dates and file before whichever falls later.

Can the personal representative file for the family?

Yes. The statute says the petition may be filed “by or on behalf of” the persons entitled. Florida Probate Rule 5.406(a) permits an interested person to file a petition to determine exempt property, and a personal representative is an interested person under § 731.201(23). A personal representative who files it is protecting the family, not favoring them.

Note the rule number. Exempt property is Rule 5.406. Homestead determination is Rule 5.405. They are different petitions with different content requirements, and both are often needed in the same estate.

Exempt Property Comes Off the Top — Before Anyone Else’s Share

Subsection (7) is the reason the exemption is worth real money, and it appears on no other Florida page we reviewed:

“Property determined as exempt under this section shall be excluded from the value of the estate before residuary, intestate, or pretermitted or elective shares are determined.”

Read alongside subsection (4) — exempt property is “in addition to protected homestead, statutory entitlements, and property passing under the decedent’s will or by intestate succession” — the effect is clear. A surviving spouse who claims exempt property takes it on top of whatever else they inherit. It is not charged against their share. It comes out of the pot before the pot is divided.

The reach of subsection (7) is broader than most people expect. It excludes exempt property before calculating:

• the residuary share under the will
• the intestate share where there is no will
• a pretermitted spouse’s or child’s share
• the elective share

For a surviving spouse weighing whether to take the elective share, this changes the arithmetic, because the exempt property is set aside first and the elective share is computed on what remains.

When an Ordinary Will Clause Quietly Destroys the Claim

This is the most expensive drafting trap in this area, and it is invisible to almost everyone who reads a will.

Section 732.402(5) provides that property specifically or demonstratively devised by the will is not included in exempt property. The theory is reasonable: if the will already gave a particular item to a particular person, the exempt property machinery should not also apply to it.

The problem is what counts as a specific devise.

In Babcock v. Estate of Babcock, 995 So. 2d 1044 (Fla. 4th DCA 2008), the will contained the sort of clause that appears in an enormous number of wills — a catch-all giving away “all my clothing, jewelry, household goods, personal effects, automobile and all other tangible personal property not otherwise specifically devised herein or pursuant to the written statement or list.” That property was left to the decedent’s wife, and to his son if the wife did not survive him. She predeceased him, so it went to the son.

The Fourth District held that clause was a specific devise. Because it was, the property fell outside exempt property under § 732.402(5) — and the surviving spouse (a pretermitted spouse, from a later marriage) could not claim it.

Sit with what that means. A boilerplate tangible-personal-property clause, drafted years earlier, with no intention of touching anyone’s statutory rights, defeated a surviving spouse’s exempt property claim. For blended families and second marriages, this is not an edge case. It is the ordinary shape of the problem.

Who can still ask the court for protection — and who cannot

The second sentence of § 732.402(5) offers a way back, but it is much narrower than it looks. It says that persons to whom property has been specifically or demonstratively devised “and who would otherwise be entitled to it as exempt property under this section” may still have the court determine the property exempt from claims.

That quoted phrase is the whole limitation. Only the surviving spouse, or the children where there is no surviving spouse, are ever entitled to exempt property under § 732.402(1). So the escape hatch reaches only them.

A brother, a nephew, a friend or a charity who receives a specific devise cannot use it. They take the property under the will, but they cannot obtain a determination that it is exempt from claims. For those devisees, a specific devise permanently removes the property from the exempt pool and leaves it exposed.

The Family Allowance: A Separate $18,000 Right

Exempt property has a sibling that families almost never claim, because nobody tells them it exists.

Under § 732.403, where the deceased person was domiciled in Florida, the surviving spouse and the lineal heirs the decedent was supporting or was obligated to support are entitled to a reasonable allowance in money out of the estate for their maintenance during administration. The allowance may not exceed a total of $18,000, and the court may order it paid as a lump sum or in installments.

The critical sentence is this one: “The family allowance is not chargeable against any benefit or share otherwise passing to the surviving spouse or to the dependent lineal heirs, unless the will otherwise provides.” Like exempt property, it comes on top.

	Exempt property	Family allowance
Statute	§ 732.402	§ 732.403
Cap	$20,000 furnishings, plus vehicles and 529s with no cap	$18,000 total
Who	Surviving spouse, or children if none	Surviving spouse and lineal heirs the decedent supported
Form	The property itself	Money
Charged against their share?	No — § 732.402(7)	No, unless the will says so
Deadline	Later of 4 months or 40 days — waived if missed	During administration

Both can be claimed in the same estate, by the same person, and neither reduces the other.

Is Homestead Property Exempt from Probate in Florida?

Not in the way most people mean it. Inheriting homestead property in Florida is governed by its own rules, and Florida homestead law inheritance works differently from every other asset in the estate. Florida homestead is protected, which is a different thing from being outside the process. Homestead passing to a surviving spouse or heirs is shielded from the claims of the estate’s creditors and it descends under its own statute — but the court still normally has to enter an order confirming that the property qualifies, and that order is a probate filing.

So the honest answer to “is homestead property exempt from probate in Florida” is: exempt from creditors, not exempt from the process. And it is governed by an entirely different statute from the exempt property rules above. Homestead is § 732.401 and § 732.4015. Exempt property is § 732.402. They are two separate protections that often apply to the same family in the same estate.

Three different things are called “homestead” — keep them apart

A great deal of bad information circulates because three distinct doctrines share one word. They have different rules and different tests, and answering a question about one with the law of another produces confident nonsense.

Doctrine	Source	What it does
Creditor protection	Fla. Const. art. X, § 4(a)–(b)	Shields the home from forced sale; the exemption inures to the surviving spouse or heirs
Descent and devise restriction	Fla. Const. art. X, § 4(c); §§ 732.401, 732.4015	Limits who you may leave the home to, and dictates how it passes if you cannot
Ad valorem tax exemption	Fla. Const. art. VII, § 6; ch. 196	Reduces the property tax bill; requires an annual application by 1 March

The tax exemption has nothing to do with probate. When you see a page answering an inheritance question with the $50,000 tax exemption or the property appraiser’s residency form, it has crossed doctrines.

Who you cannot leave the homestead to

This is the rule that triggers everything else, and it is missing from most discussions of Florida homestead inheritance.

Section 732.4015(1), tracking article X, § 4(c) of the Florida Constitution, provides that the homestead shall not be subject to devise if the owner is survived by a spouse or a minor child — except that it may be devised to the owner’s spouse if there is no minor child.

Read the triggers carefully, because they are independent and they are not the same:

• A surviving spouse alone triggers the restriction. You may devise the homestead to that spouse, but to nobody else.
• A surviving minor child triggers it independently. With a minor child, no devise is permitted at all — not even to the spouse.
• A surviving adult child does not trigger it. “Minor” means under 18 with disabilities not removed, per § 731.201(25). An unmarried person survived only by adult children may devise the homestead to anyone.

There is one more limit inside the spousal exception that catches careful drafters. Where there is a surviving spouse and adult children, the homestead may be devised to the spouse — but only in fee simple. In In re Estate of Finch, 401 So. 2d 1308 (Fla. 1981), the Florida Supreme Court held that the constitutional exception permitting a devise to the spouse is exclusive, and prohibits devising anything less than a fee simple interest in those circumstances. A life estate to the spouse is not a lesser included version of a permitted devise. It is an invalid one.

Webb v. Blue, 243 So. 3d 1054 (Fla. 1st DCA 2018), marks the other boundary: where the deceased person was survived by neither a spouse nor a minor child, the constitutional restriction did not apply at all, and he validly left his homestead to a friend who was not an heir through a general devise of his entire estate.

What happens when the homestead cannot be devised

A devise made in violation of § 732.4015 is void. The homestead then descends under § 732.401(1) as though there were no will, and it does so at the moment of death, automatically.

Section 732.401(1): where the deceased person is survived by a spouse and one or more descendants, the surviving spouse takes a life estate in the homestead, with a vested remainder to the descendants in being at the time of death, per stirpes.

The trigger is descendants — not minor children. This is worth emphasizing because a prominent Florida guide states it the other way around, and the error changes the outcome for a very large number of families. Any descendants, of any age, produce the life-estate-and-remainder result. Adult children count.

Ballard v. Pritchard, 332 So. 3d 570 (Fla. 2d DCA 2021), shows the whole machine working, and it is worth walking through because it is exactly the situation families create by accident.

The decedent was survived by a spouse and two adult sons. Her will gave her spouse a life estate in the homestead, with the remainder to one of the two sons. The probate court gave effect to the will. The Second District reversed. Because she was survived by a spouse, the homestead was not subject to devise except a fee simple to that spouse — and a life estate is not a fee simple, so the devise was invalid under article X, § 4(c) and § 732.4015(1). The homestead therefore passed by operation of § 732.401(1) at the moment of her death: a life estate to the surviving spouse, with a vested remainder to both sons, per stirpes. The son the will tried to cut out took half the remainder anyway.

The court added something else worth knowing: equitable principles such as waiver and estoppel cannot nullify a homestead interest, and the excluded son’s vested remainder came into existence at the moment of death.

Who survives	Can the homestead be devised?	If not devised, who takes it
Spouse and minor child	No devise at all	Life estate to spouse, vested remainder to descendants per stirpes
Spouse and adult descendants only	To the spouse, fee simple only (Finch)	Life estate to spouse, vested remainder to descendants per stirpes
Spouse, no descendants	To the spouse, fee simple	Spouse
Minor child, no spouse	No devise at all	Descends as intestate property
Adult children only, no spouse, no minor child	Freely devisable — to anyone (Webb v. Blue)	Descends under Florida intestate succession; homestead follows the same path

The six-month election to take one-half instead

A surviving spouse handed a life estate is often handed a problem. A life estate cannot easily be sold, it cannot easily be mortgaged, and the spouse remains responsible for carrying a house they may not want or be able to afford.

Section 732.401(2) provides the alternative: the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the other half going to the descendants.

Four details, and each one has ended someone’s election:

• The election must be made within 6 months after the death and during the surviving spouse’s lifetime. The clock runs from death — not from service of the notice of administration, not from the issuance of letters.
• It is irrevocable once made (§ 732.401(2)(d)).
• It is perfected by recording a notice of election in the official records of the county where the homestead is located (§ 732.401(2)(e)) — recorded, not filed in the probate case. Filing it in the wrong place is the same as not making it.
• The time may not be extended except under paragraph (c), which allows a petition by an attorney in fact or guardian of the property filed within the same six months.

Because the deadline is statutory rather than a rule deadline, the probate rule that lets a court forgive excusable neglect does not rescue a late election. A Florida appellate court has reversed a trial court that granted one.

Whether to elect is a real decision with real trade-offs. A life estate gives exclusive possession for life but no marketable interest. A one-half tenancy in common gives a sellable, mortgageable half — and the right to force a sale through a partition action — but it also means sharing the house with the remaindermen now, and losing the exclusive right to live there.

Why you still need a court order

Homestead rights exist without a court order. Title vests at the moment of death by operation of law, and Florida courts have described a homestead petition as similar to an action for declaratory relief that explains or clarifies existing rights rather than creating new ones. See In re Estate of Hamel, 821 So. 2d 1276, 1280 (Fla. 2d DCA 2002).

As a practical matter, though, an order determining homestead status is what lets anyone do anything with the house. Title underwriters generally will not insure a sale of inherited homestead without one, and a lender will not refinance without clear title. Requirements vary by underwriter, which is a reason to ask yours early rather than after a closing date is set. Florida Probate Rule 5.405 supplies the procedure, and the resulting order describes the property, determines its homestead status, names the persons entitled and defines each interest.

Two statutes explain why the personal representative cannot simply hand the house over. Section 733.607(1) gives the personal representative the right to possession of the deceased person’s property “except the protected homestead” — so the executor has no authority to administer, sell or encumber it. Section 733.608(2) permits, but does not require, the personal representative to take possession of apparent homestead that is unoccupied, purely to preserve and insure it pending a determination. In Harrell v. Snyder, 913 So. 2d 749 (Fla. 5th DCA 2005), the Fifth District confirmed that while the personal representative had authority to take possession to preserve the property, the personal representative had no authority to sell it.

What homestead does not protect against

Homestead defeats the claims of ordinary unsecured creditors. It does not make the house debt-free, and families are often shocked by that.

• Mortgages survive. So do home equity lines. The lender’s rights are unaffected by anyone’s homestead status.
• Property taxes survive.
• Construction and mechanic’s liens for work performed on the property survive.
• Association liens — HOA and condominium — survive.

The constitutional exemption is from forced sale by general creditors. It was never a discharge of the debts secured by the house itself.

Homestead, citizenship and residency

This question comes up constantly in South Florida and gets answered badly almost every time, usually by importing the property appraiser’s rules into a probate question.

Citizenship is not a prerequisite. The Florida Constitution protects homestead owned by “a natural person,” and the Florida Supreme Court confirmed in Juarrero v. McNayr, 157 So. 2d 79 (Fla. 1963), that citizenship is not required to claim the homestead exemption.

Permanent residency, however, is material to creditor protection. In In re Cooke, 412 So. 2d 340 (Fla. 1982), the Florida Supreme Court held that an alien without a permanent visa cannot be a permanent resident of Florida and therefore cannot place a residence beyond the reach of creditors under the exemption from forced sale. The Third District applied that rule in Raheb v. DiBattisto, 513 So. 2d 717 (Fla. 3d DCA 1987).

The descent and devise question is genuinely open. Those cases address creditor protection and the tax exemption. Whether an undocumented person’s property, or the property of someone here on a temporary visa, is subject to the descent and devise restrictions of article X, § 4(c) and §§ 732.401–732.4015 is a distinct question, and no Florida appellate court has resolved it. Anyone who tells you the answer with confidence is guessing.

Homestead held jointly, by the entireties, or in a trust

Section 732.401(5) provides that the descent rules in that section do not apply to property held as tenancy by the entireties or in joint tenancy with rights of survivorship. Where spouses hold the home as tenants by the entireties, it passes to the survivor outside probate and the life-estate machinery never engages.

A home held in a revocable living trust is still owned by a natural person for constitutional purposes, so the protection follows it in. The devise restrictions follow it in too — a trust cannot do what a will could not. Section 736.1109, enacted in 2021 and made expressly retroactive, confirms that where a trust devise of homestead violates the constitutional limits, title passes under § 732.401 at the moment of death, and that a general power of sale or a general direction to pay debts in the trust does not expose protected homestead to creditors.

Where there is no minor child, a spouse can waive homestead rights as to devise. Section 732.7025 supplies safe-harbor language for a deed that waives the article X, § 4(c) devise restriction — and it is important to understand that this waives only the devise restriction. It does not waive creditor protection and it does not waive the requirement that a spouse join in a conveyance.

Assets That Pass Outside Probate in Florida Entirely

These are the true non-probate assets. Nobody petitions for them, no deadline runs, and the estate never owns them. Ownership passes by contract, by titling or by trust at the moment of death.

• Assets titled in a properly funded revocable trust. The successor trustee’s authority begins immediately. A trust document alone does nothing — an unfunded trust leaves the assets in the deceased person’s individual name and they go through probate anyway.
• Payable-on-death and transfer-on-death accounts, retirement accounts and life insurance with a living named beneficiary. What happens to a bank account when someone dies covers the account side in detail.
• Property held with rights of survivorship, or between spouses as tenancy by the entireties.
• Real property under a recorded enhanced life estate deed — what Florida calls a lady bird deed.

Two Florida-specific corrections, because both circulate widely and both are wrong:

Florida has no transfer-on-death deed for real property. Chapter 711 covers securities, not land. The Florida equivalent is the lady bird deed. And Florida has no transfer-on-death or beneficiary titling for vehicles or vessels either — a car cannot be given a beneficiary on its title the way a bank account can.

Survivorship also is not as automatic as people assume. Under § 655.79, a multiple-party deposit account carries a rebuttable presumption of survivorship, which can be defeated by clear and convincing evidence of a contrary intent, and a convenience or agency account confers no ownership at all. For non-account property, § 689.15 presumes a tenancy in common absent express survivorship language, with tenancy by the entireties the exception. Florida’s right of survivorship rules turn on the exact words on the title.

Assets That Usually Still Require Probate

Probate reaches whatever the deceased person owned in their own name alone, with no beneficiary designation and no survivorship:

• Bank and investment accounts in the deceased person’s name only, with no payable-on-death beneficiary
• Real estate titled only in the deceased person’s name, unless protected homestead rules apply
• Real estate owned as tenants in common
• Vehicles that do not qualify for exempt treatment or a simplified transfer
• Business interests owned individually
• Life insurance or retirement accounts payable to the estate, or where the named beneficiary died first and there is no contingent beneficiary
• Tangible personal property of significant value that falls outside the furnishings exemption

A will does not change any of this. A will does not avoid probate — it is instructions to the probate court about how to distribute the probate assets, which means the will only operates if a probate is opened.

Specific Assets People Ask About

Cars, trucks, motorcycles and mopeds

Section 732.402(2)(b) borrows its definition from the traffic code, and the borrowing has consequences. The definition of “motor vehicle” now sits at § 316.003(46) — the subsection was renumbered effective 1 July 2025, so older sources citing § 316.003(21) are out of date. It covers a self-propelled vehicle not operated upon rails or a guideway, and it expressly excludes:

Excluded from “motor vehicle”	Consequence for exempt property
Bicycle · electric bicycle	Not exempt property under (2)(b)
Motorized scooter · moped	Not exempt property under (2)(b)
Electric personal assistive mobility device	Not exempt property under (2)(b)
Mobile carrier · personal delivery device	Not exempt property under (2)(b)
Swamp buggy	Not exempt property under (2)(b)

A motorcycle is not on that list, is self-propelled, and comes nowhere near 15,000 pounds — so it qualifies, provided it was held in the deceased person’s name and regularly used as a personal vehicle.

On the weight limit: the statute says “in excess of” 15,000 pounds, so a vehicle at exactly 15,000 pounds qualifies. The limit applies individually to each of the two vehicles, not to the pair combined.

Boats, RVs and travel trailers

A travel trailer is not self-propelled, so it falls outside the definition and cannot be exempt property.

A boat or vessel almost certainly does not qualify. Chapter 316 is a traffic statute about vehicles on roadways; vessels are governed by chapter 327. But no Florida appellate decision has squarely held that a boat cannot be exempt property under § 732.402, so this remains technically unresolved.

A self-propelled motor home is the genuinely open case. Under the current statute — which says “motor vehicles as defined in s. 316.003” rather than the older word “automobiles” — a motor home would technically fall within the definition. The usage requirement survives, though, and Corbin teaches that recreational use is not personal-vehicle use. A motor home someone actually lived in and drove as their only vehicle presents a question a court has not answered.

Jewelry, art and collections

None of these are household furniture, furnishings or appliances. Jewelry, artwork, wedding rings, coins, cards, watches, wine and similar items sit outside the $20,000 exemption and remain available to creditors. That is often the single largest gap between what a family assumes is protected and what actually is.

Firearms

Firearms are ordinary probate assets — they are not household furnishings and there is no firearms exemption in § 732.402. They also carry a layer of federal law that most estate assets do not: the personal representative and any recipient must be lawfully able to possess them, transfers across state lines have their own requirements, and items regulated under the National Firearms Act require specific handling. This is one to raise with a Florida probate lawyer early rather than move first and ask later.

The safe deposit box

A safe deposit box is not itself an asset — it is a container whose contents belong to whoever owned them. Florida restricts who may be present at the initial opening and requires an inventory before the contents are released, precisely because boxes are where wills, bearer instruments and disputed jewelry live. Do not have the box opened informally by whoever holds a key. The executor should follow the statutory procedure.

Cryptocurrency and online accounts

Cryptocurrency is property, and it is a probate asset unless it sits in a trust or has a working transfer-on-death arrangement at the exchange. It is not household furnishings, so it is not exempt property.

Access is governed by chapter 740, Florida’s Fiduciary Access to Digital Assets Act, which sets out what a personal representative may reach and what a custodian may demand before granting it. Self-custodied crypto presents a different problem entirely: if nobody has the keys, the law cannot help. The mechanics are worth handling deliberately rather than improvising.

Retirement accounts, IRAs and annuities

Are retirement accounts exempt from Florida probate? Not as exempt property — an IRA, a 401(k) or an annuity is not household furniture and appears nowhere in § 732.402. What usually keeps them out of probate is the beneficiary designation: an account with a living named beneficiary pays that person directly and never enters the estate. An account payable to the estate, or one whose named beneficiary died first with no contingent beneficiary, becomes an ordinary probate asset.

Florida also has creditor-exemption statutes outside the Probate Code that apply to retirement money, life insurance and annuity values. How those provisions operate in a particular estate is its own analysis and does not run through § 732.402 — worth raising with a Florida probate lawyer rather than assuming the answer either way.

Timeshares

A Florida timeshare is real property and a probate asset. It is not exempt property, and it usually comes with ongoing assessments that continue after death. Inheriting a Florida timeshare covers the options, including what happens if nobody wants it.

Pets

Under Florida law a pet is personal property. A pet is not a household furnishing, so it is not exempt property, and the animal passes under the will or by intestacy like any other item. Families who care about this outcome should address it while planning rather than leave it to the residuary clause.

Tools of the trade and business equipment

Tools, work vehicles beyond the two personal ones, inventory and business equipment are not household furniture, furnishings or appliances. They stay in the estate and remain reachable by creditors.

How to Claim Exempt Property, Step by Step

This is the part that no competing page covers, and it is the part that determines whether a family keeps anything.

1. Find the date the notice of administration was served. Not the date of death, not the date the case was opened. Service is what starts the four-month clock. If nobody served the surviving spouse, the clock has not started.
2. Calendar both dates. Four months from service, and forty days from the termination of any will proceeding. File before whichever is later.
3. Inventory what actually qualifies. Furnishings in the usual residence at net date-of-death value; up to two qualifying vehicles; every 529 and Florida Prepaid account; any § 112.1915 benefits. Separate out what does not qualify — collections, jewelry, tools, a third car — so nobody is surprised later.
4. Check the will for a tangible personal property clause. If there is a catch-all devise of personal effects and automobiles, Babcock may have removed those items from the exempt pool already. Better to know before filing than after.
5. File the petition to determine exempt property under Rule 5.406.
6. File the homestead petition separately under Rule 5.405 if there is a house. These are different petitions and one does not accomplish the other.
7. Consider the family allowance under § 732.403 in the same sitting. It is a separate right worth up to $18,000 and it is not charged against anyone’s share.
8. Get the order. The court’s order is what authorizes the personal representative to release the property. A voluntary handover without an order is not the mechanism, and it leaves the personal representative exposed.

What Exempt Property Does Not Protect You From

Section 732.402(3) is precise: exempt property is exempt from all claims against the estate “except perfected security interests thereon.”

A perfected security interest survives. A car loan noted on the title, a financing lien on the appliances, a recorded mortgage — the secured party keeps its rights. The exemption defeats the general unsecured creditor: the credit card company, the hospital billing department, the judgment holder with nothing attached.

The word “perfected” is doing real work. A creditor who has a claim but never perfected a security interest in the specific property has no better position than any other unsecured claimant.

A few other limits worth naming plainly, because they are the questions people actually have:

• Secured debt does not disappear. Inheriting an exempt vehicle with a loan means inheriting the loan.
• Exempt property does not shield the recipient’s own creditors. Once the property is distributed, it belongs to the surviving spouse or child and is exposed to their creditors on ordinary terms.
• The protection is against claims in the estate, not a general asset-protection plan and not a substitute for one.

Questions Florida Courts Have Not Answered

Most pages on this topic project total confidence. Several of the genuinely interesting questions in this area are open, and a family making a decision deserves to know which is which.

• Can a boat ever be exempt property? Almost certainly not, since chapter 316 governs roadway vehicles and vessels live in chapter 327 — but no Florida appellate court has squarely held it.
• Can a self-propelled motor home qualify when it genuinely was the family’s personal vehicle? Corbin left the door open and nobody has walked through it.
• Can a surviving spouse’s exempt property claim override a 529 plan’s designated beneficiary where that beneficiary is also a child of the deceased person? The statute makes the plan exempt property; it does not say what happens when the two rights collide.
• Can equitable estoppel extend a § 732.402(6) deadline that has properly started running? Improper service means the clock never started, which is settled. Estoppel on a clock that did start is not.
• Do the homestead descent and devise restrictions apply to property owned by someone who is not a permanent resident? The creditor-protection cases do not answer it.

If your situation lands on one of these, that is a conversation rather than a search result.

When to Speak With a Florida Probate Attorney

• A notice of administration was served and you are inside — or past — the four-month window
• You are a surviving spouse in a second marriage and the will contains a tangible personal property clause
• The estate includes a Florida homestead and the family needs to sell or refinance
• The will devised the homestead in a way that may be void
• A surviving spouse is deciding between a life estate and the one-half election, with under six months from the death
• All of the deceased person’s children died before them and only grandchildren survive
• The deceased person lived out of state but owned property in Florida
• A creditor is claiming against property you believe is exempt — a Florida probate attorney can test the claim before you concede it
• A bank, title company or dealership will not release an asset without a court order
• You are serving as executor and are unsure whether to file the petition yourself

Frequently Asked Questions About Assets Exempt from Probate in Florida

What assets are exempt from probate in Florida?

Under § 732.402, exempt property consists of household furniture, furnishings and appliances in the deceased person’s usual residence up to a net value of $20,000 at the date of death; two motor vehicles under 15,000 pounds gross vehicle weight, regularly used by the family; all qualified tuition programs including Florida Prepaid; and death benefits paid under § 112.1915. Separately, assets that pass entirely outside probate include funded trust assets, payable-on-death and transfer-on-death accounts, life insurance and retirement accounts with a living named beneficiary, and survivorship property.

What is the difference between exempt property and non-probate property?

Non-probate property never enters the estate — it transfers automatically by contract, titling or trust. Exempt property is estate property. It is inventoried and administered in the probate case, but it is protected from the estate’s creditors and must be claimed by petition within a deadline.

Is exempt property still part of the probate estate?

Yes. It is listed on the inventory and administered in the case. What § 732.402(3) does is exempt it from all claims against the estate except perfected security interests.

Who can claim exempt property in Florida?

The surviving spouse. If there is no surviving spouse, the deceased person’s children. The right belongs to those people specifically — it does not extend to every beneficiary, and the personal representative cannot waive it on their behalf.

Can grandchildren claim exempt property if their parent died first?

No. Section 731.201(3) defines “child” to exclude a grandchild or more remote descendant, and there is no per stirpes representation in § 732.402(1). If all of the deceased person’s children predeceased them and there is no surviving spouse, nobody is entitled to exempt property.

Do adult children qualify for exempt property?

Yes, where there is no surviving spouse. Section 732.402 contains no age requirement.

What is the deadline to claim exempt property in Florida?

The petition must be filed on or before the later of four months after the notice of administration was served, or forty days after the termination of any proceeding involving the construction, admission to probate or validity of the will. Miss both and the right is waived.

What happens if you miss the exempt property deadline?

The right is deemed waived. Because § 732.402(6) is a statute rather than a rule, the probate rule allowing enlargement for excusable neglect does not rescue a late filing.

Does a will contest extend the exempt property deadline?

Yes. The forty-day prong runs from the termination of a proceeding over the will, and the statute takes the later of the two dates. That is exactly what the second prong exists to do.

What if the surviving spouse was never served with the notice of administration?

Then the four-month clock never started. A Florida appellate court has held a petition timely where the personal representative failed to serve the notice of administration on the surviving spouse.

Can the personal representative file the petition for the family?

Yes. The statute permits filing “by or on behalf of” the persons entitled, and Rule 5.406(a) allows an interested person to file. A personal representative is an interested person under § 731.201(23).

Does exempt property come out of the spouse’s share or on top of it?

On top. Section 732.402(4) says exempt property is “in addition to” other shares, and § 732.402(7) excludes it from the value of the estate before residuary, intestate, pretermitted or elective shares are calculated.

How does exempt property affect the elective share?

Exempt property is set aside before the elective share is determined, so it is not counted in the pot the elective share is computed against.

Can a will defeat the surviving spouse’s exempt property rights?

Yes, and it happens through ordinary boilerplate. Section 732.402(5) excludes specifically or demonstratively devised property. In Babcock v. Estate of Babcock, a catch-all clause giving away clothing, jewelry, household goods, personal effects and automobiles was held to be a specific devise, and it defeated a surviving spouse’s exempt property claim.

Can any devisee ask the court to treat devised property as exempt?

No. The second sentence of § 732.402(5) reaches only devisees “who would otherwise be entitled to it as exempt property” — that is, the surviving spouse, or the children where there is no spouse. A sibling, nephew or friend cannot invoke it.

Is there a dollar limit on the two exempt vehicles?

No. The only limit in § 732.402(2)(b) is 15,000 pounds gross vehicle weight per vehicle. Any page publishing a combined dollar cap on vehicles is wrong — the $20,000 figure belongs to household furnishings.

Does a vehicle at exactly 15,000 pounds qualify?

Yes. The statute excludes vehicles “in excess of” 15,000 pounds, and exactly 15,000 does not exceed 15,000.

Is a car exempt from probate in Florida?

Up to two vehicles can be exempt property, provided each was held in the deceased person’s name, was regularly used by the family as a personal vehicle, and does not exceed 15,000 pounds gross vehicle weight. A third vehicle, or one not in regular family use, stays in the estate.

Are vehicles exempt from probate in Florida?

Two of them can be. Are automobiles exempt from probate in Florida is really two questions: the vehicle remains a probate asset that goes on the inventory, but up to two qualifying vehicles are exempt from the estate’s creditors once the court determines them exempt. In Florida how many vehicles are exempt from probate is capped at two, each under 15,000 pounds gross vehicle weight, with no dollar limit at all.

Are retirement accounts exempt from Florida probate?

Not as exempt property — IRAs, 401(k)s and annuities are not listed in § 732.402. They usually stay out of probate because of a living named beneficiary. If the estate is named, or the beneficiary died first with no backup, the account becomes a probate asset.

Does a boat or an RV count as one of the two vehicles?

A travel trailer does not — it is not self-propelled. A boat almost certainly does not, since § 316.003 governs roadway vehicles and vessels are governed by chapter 327, though no Florida appellate court has squarely decided it. A self-propelled motor home is technically within the definition but must still clear the “regularly used as a personal vehicle” test, which a motor home used for recreation will struggle to meet.

Is the $20,000 furniture limit gross or net, and as of when?

Net value, as of the date of death. Encumbrances reduce it, and later changes in value are irrelevant.

Are jewelry, artwork and collections exempt property?

No. The exemption reaches household furniture, furnishings and appliances. Jewelry, art, coins, cards, watches and similar collectibles fall outside it and remain available to creditors.

Is homestead property exempt from probate in Florida?

It is exempt from creditors, not from the process. Homestead passing to a surviving spouse or heirs is protected from the estate’s creditors and descends under § 732.401, but the court still normally enters an order determining that the property qualifies — and that order is a probate filing.

Who inherits homestead property in Florida?

Where the homestead could not be devised, § 732.401(1) decides who inherits it. A surviving spouse plus any descendants means the spouse takes a life estate and the descendants take a vested remainder per stirpes — unless the spouse elects the undivided one-half interest within six months. A spouse and no descendants means the spouse takes it outright. No spouse and no minor child means it descends as intestate property, or passes under the will if it was validly devised.

Does homestead property have to be probated in Florida?

The homestead is not administered as an ordinary estate asset — § 733.607(1) keeps it out of the personal representative’s hands entirely. But it usually still has to be probated in the practical sense: someone files a petition and the court enters an order determining homestead status, and that order is what clears title so the property can be sold or refinanced.

Can you leave your Florida homestead to anyone you want?

Only if you are survived by neither a spouse nor a minor child. A surviving spouse means you may devise it to that spouse and nobody else, and only in fee simple. A surviving minor child means no devise is permitted at all. A surviving adult child does not restrict devise.

What happens if a will devises the homestead improperly?

The devise is void and the homestead descends under § 732.401(1) as if there were no will — a life estate to the surviving spouse with a vested remainder to the descendants per stirpes, effective at the moment of death. In Ballard v. Pritchard, a will that gave the spouse a life estate with the remainder to one of two sons was invalid, and both sons took the remainder.

Does the homestead life estate require minor children?

No — that is a common error. The trigger under § 732.401(1) is a surviving spouse plus one or more descendants, of any age. Minor children matter to the devise restriction, not to the descent rule.

What is the six-month homestead election?

A surviving spouse may elect to take an undivided one-half interest as a tenant in common instead of a life estate. It must be made within six months of the death, is irrevocable once made, and is perfected by recording a notice of election in the county where the property sits — not by filing it in the probate case.

Can you sell or refinance an inherited Florida homestead without a court order?

Rights vest at death without an order, but as a practical matter title insurers generally will not insure a sale of inherited homestead without an order determining homestead status, and lenders will not refinance without clear title. Requirements vary by underwriter — ask yours early.

Does homestead protection wipe out the mortgage?

No. Mortgages, property taxes, construction liens and association liens all survive. The constitutional exemption is from forced sale by general unsecured creditors, not a discharge of debts secured by the house.

Does exempt property apply if the deceased person lived in another state?

No. Section 732.402(1) applies only where the deceased person was domiciled in Florida at death. A non-resident gets no Florida exempt property, even as to items located in Florida and even where an ancillary probate is opened.

Can exempt property rights be waived in a prenuptial agreement?

Spousal rights in an estate can be waived by a written agreement, and homestead rights as to devise have their own waiver mechanism under § 732.7025 where there is no minor child. Whether a particular agreement reaches exempt property depends on its wording, which is worth reading closely rather than assuming.

What is a “perfected security interest”?

A creditor’s interest in specific property that has been legally established against that property — a lien noted on a car title, a recorded mortgage, a properly filed financing statement. Those survive the exemption. An ordinary unsecured creditor has no such interest and cannot reach exempt property.

What is the family allowance, and can you claim it too?

Under § 732.403, the surviving spouse and lineal heirs the deceased person was supporting may receive a reasonable allowance out of the estate for maintenance during administration, capped at $18,000 total. It is not chargeable against their share unless the will says otherwise, and it can be claimed alongside exempt property.

Does a will avoid probate in Florida?

No. A will is instructions to the probate court about how to distribute probate assets. It only operates if a probate is opened.

Does a trust avoid probate if it was never funded?

No. A trust document alone does nothing. Assets still titled in the deceased person’s individual name go through probate regardless of what the trust says.

Does a 529 plan pass to the student named on it?

Not automatically as a matter of probate law. The account owner was the deceased person, so the account is part of the estate; § 732.402(2)(c) protects it from the estate’s creditors. Whether a surviving spouse’s exempt property claim can override a designated beneficiary who is also a child of the deceased person is an open question in Florida.