In Florida, a surviving spouse does not always automatically get the house just because they’re the spouse—and a will does not always control the house just because it says so. The outcome depends on how the property is titled, whether it is the decedent’s Florida homestead, whether there are minor children, and whether the spouse has rights like the elective share.
Our Florida Inherited Property Real Estate Advisors recommend confirming title and homestead status before assuming who inherits—or before listing the property for sale.
Why this question is so common (and why it matters for selling)
Families often discover a conflict between what a will says and what Florida law requires. The will might leave the home to adult children, siblings, or a trust, while the surviving spouse believes they “automatically” receive the property. In many cases, neither assumption is fully correct until you review:
- The deed/title (ownership form)
- Whether the property is homestead
- The existence of a minor child
- Whether the spouse has statutory rights that override the will
This isn’t just legal theory—it directly affects who can sign a listing agreement, who can sign a contract, and what a title company will insure at closing. Our Florida Inherited Property Real Estate Advisors recommend treating inheritance questions as a “title-first” project: confirm ownership, then plan the sale.
1) If the home is titled jointly with the spouse, the will may not matter
Many Florida couples own their primary residence as tenancy by the entirety (TBE) (common for married couples) or as joint tenants with right of survivorship (JTWROS).
- With TBE, when one spouse dies, the surviving spouse typically becomes the full owner automatically by operation of law.
- With JTWROS, the surviving joint owner typically receives the decedent’s share automatically.
In these situations, the home often transfers outside probate, and a will that tries to leave the house to someone else usually does not control that asset.Our Florida Inherited Property Real Estate Advisors recommend pulling the most recent recorded deed immediately—because the title vesting language (TBE vs. tenants in common vs. sole ownership) often answers 80% of the question.
2) If the home is solely owned, Florida homestead rules can override the will
Florida’s homestead protections are powerful and can limit how a primary residence is inherited—even when there is a will.
Key homestead concepts (high-level):
- If the property is the decedent’s homestead, Florida law may restrict who can receive it through a will.
- Restrictions depend heavily on whether the decedent is survived by a spouse and/or a minor child.
Common outcomes:
- Survived by a spouse and no minor child: the homestead may generally be devised to the spouse, but if the will tries to leave it to someone else, that devise may be invalid.
- Survived by a spouse and a minor child: the homestead generally cannot be devised by will in a way that cuts out protected heirs; the will’s instruction may be ineffective as to the homestead.
- When a homestead devise is invalid or not allowed, Florida law can cause the property to pass in a statutory way—often resulting in the spouse receiving a life estate with the remainder to descendants, with an option in many cases for the spouse to elect a 50% tenants-in-common interest instead (details are fact-specific).
Because these outcomes can create shared ownership between a spouse and children, homestead issues often become the #1 reason a “simple sale” turns complicated.Our Florida Inherited Property Real Estate Advisors recommend asking early: “Was this the decedent’s primary residence and homestead?”—because it changes the inheritance map and can change who must sign to sell.
3) Even if the will disinherits the spouse, Florida gives spouses strong rights
Florida is not a “you can disinherit your spouse with a will and that’s that” state in many circumstances. A surviving spouse may have rights that effectively override the will’s plan, including:
- Elective share (generally a statutory right to claim a portion—commonly discussed as 30%—of the elective estate, which can include more than just probate assets)
- Homestead rights
- Exempt property rights
- Family allowance (in qualifying estates)
These rights can affect whether the home must be sold, whether the spouse must be bought out, or whether other assets must be used to satisfy the spouse’s entitlement.Our Florida Inherited Property Real Estate Advisors recommend that families do not list the property until a Florida probate/estate attorney confirms whether elective share or homestead elections are in play—because those elections can change the seller(s) mid-transaction.
4) “Pretermitted spouse” issues: what if the will was signed before the marriage?
A surprisingly common Florida scenario: someone signs a will, later gets married, and never updates the will. In many cases, Florida law may treat the surviving spouse as a pretermitted spouse, meaning the spouse may be entitled to an intestate share unless the will clearly shows the omission was intentional or the spouse was otherwise provided for.
So even if the will leaves the house to someone else, the spouse may still have a claim that must be resolved before title can be insured.Our Florida Inherited Property Real Estate Advisors recommend providing the date of marriage and the date of the will to the estate attorney early—this is one of the fastest ways to identify whether the will can be relied upon.
5) If the will controls the house, probate timing still matters for a sale
If the property is solely owned and does not transfer automatically by survivorship, it often requires probate authority before anyone can sell. That may include:
- Appointment of a personal representative
- Court documents establishing authority to sign
- Possible orders or notices depending on the estate type and circumstance
Even when the spouse is the main beneficiary, the spouse may not be able to sell immediately without the proper legal authority and title clearance.Our Florida Inherited Property Real Estate Advisors recommend planning for a “title and authority” phase before marketing—so you avoid accepting an offer you can’t close on schedule.
Real-world examples (how outcomes differ)
Example A: House titled TBE
- Deed: “Husband and Wife, as tenants by the entirety”
- Will: “I leave my house to my children”
- Likely result: surviving spouse owns the house outright; will doesn’t control that asset.
Example B: Sole-owner homestead with spouse + minor child
- Deed: decedent alone
- Will: leaves house to sibling
- Likely result: homestead restrictions override the will; spouse/child protections govern transfer, often creating life estate/ownership structure that must be handled before a sale.
Example C: Sole-owner non-homestead investment property
- Deed: decedent alone
- Will: leaves property to adult child
- Likely result: will may control, but probate may be required to transfer and sell—spouse may still have elective share rights depending on the broader estate.
What to do next (a practical checklist before you try to sell)
Our Florida Inherited Property Real Estate Advisors recommend taking these steps in order:
- Pull the recorded deed (county records) and confirm how title is held.
- Confirm whether the property is likely homestead (primary residence) and whether there are minor children.
- Gather documents: will, death certificate, marriage certificate (if relevant), trust documents (if any).
- Ask a Florida estate/probate attorney:
- Does homestead restrict the devise?
- Is elective share likely?
- Who has authority to sign a listing/contract today?
- Run an early title search to identify mortgages, liens, code enforcement issues, or clouds on title.
Bottom line
A surviving spouse in Florida does not always automatically get the house, and a will does not always have the final word. The deciding factors are typically title (survivorship vs. sole ownership), Florida homestead rules, the presence of a minor child, and the spouse’s statutory rights like the elective share.
Our Florida Inherited Property Real Estate Advisors recommend confirming deed vesting and homestead status before making any assumptions—or taking the property to market. If you’re navigating an inherited home sale, Inherited Property Real Estate Advisors can help you coordinate the real estate side with the title and legal timelines so your transaction stays clean, insurable, and on track.