Florida Statute 732.401 - Full Text and Legal Analysis

The 2024 Florida Statutes (including 2025 Special Session C)

Title XLII
ESTATES AND TRUSTS

Chapter 732
PROBATE CODE: INTESTATE SUCCESSION AND WILLS

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F.S. 732.401

732.401 Descent of homestead.—

(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:

ELECTION OF SURVIVING SPOUSE
TO TAKE A ONE-HALF INTEREST OF
DECEDENT’S INTEREST IN
HOMESTEAD PROPERTY

STATE OF

COUNTY OF

1. The decedent, , died on . On the date of the decedent’s death, the decedent was married to , who survived the decedent.

2. At the time of the decedent’s death, the decedent owned an interest in real property that the affiant believes to be homestead property described in s. 4, Article X of the State Constitution, which real property being in County, Florida, and described as: (description of homestead property) .

3. Affiant elects to take one-half of decedent’s interest in the homestead as a tenant in common in lieu of a life estate.

4. If affiant is not the surviving spouse, affiant is the surviving spouse’s attorney in fact or guardian of the property, and an order has been rendered by a court having jurisdiction of the real property authorizing the undersigned to make this election.

(Affiant)

Sworn to (or affirmed) and subscribed before me by means of ☐ physical presence or ☐ online notarization this day of (month) , (year) , by (affiant)

(Signature of Notary Public)

(Print, Type, or Stamp Commissioned Name of Notary Public)

Personally Known OR Produced Identification

(Type of Identification Produced)

(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.

(4) If the surviving spouse’s life estate created in subsection (1) is disclaimed pursuant to chapter 739, the interests of the decedent’s descendants may not be divested.

(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.

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.

Note.—Created from former s. 731.27.

F.S. 732.401 on Google Scholar

F.S. 732.401 on CourtListener

Amendments to 732.401

Annotations, Discussions, Cases:

Cases Citing Statute 732.401

Total Results: 64

Lowe v. Broward County

766 So. 2d 1199, 2000 Fla. App. LEXIS 11893, 2000 WL 1345513

District Court of Appeal of Florida | Filed: Sep 20, 2000 | Docket: 1329491

Cited 25 times | Published

rights in *1206 homestead property (Fla. Stat. § 732.401; Fla. Const. Art. 10, § 4(c)); legitimacy of children

Lorraine v. Grover, Ciment, Weinstein & Stauber, PA

467 So. 2d 315, 10 Fla. L. Weekly 327

District Court of Appeal of Florida | Filed: Feb 5, 1985 | Docket: 1274573

Cited 19 times | Published

subject to devise.[1]See Art. X, § 4, Fla. Const.; § 732.401-.4015, Fla. Stat. (1981). It therefore passed

In Re Estate of Skuro

467 So. 2d 1098, 10 Fla. L. Weekly 1090, 1985 Fla. App. LEXIS 13760

District Court of Appeal of Florida | Filed: May 1, 1985 | Docket: 1274909

Cited 12 times | Published

instead all the children share in it under Section 732.401, Florida Statutes (1983). On the other hand

Chapman v. Chapman

526 So. 2d 131, 1988 WL 44485

District Court of Appeal of Florida | Filed: May 10, 1988 | Docket: 1679794

Cited 11 times | Published

child who shall survive me. [3] Currently section 732.401, Florida Statutes (1987).

In Re Estate of Cleeves

509 So. 2d 1256, 12 Fla. L. Weekly 1685

District Court of Appeal of Florida | Filed: Jul 10, 1987 | Docket: 1361747

Cited 11 times | Published

descended in accordance with the provisions of section 732.401, Florida Statutes (1985). The appeals were

In Re Estate of Skuro

487 So. 2d 1065, 11 Fla. L. Weekly 199, 1986 Fla. LEXIS 2067

Supreme Court of Florida | Filed: May 1, 1986 | Docket: 1797347

Cited 9 times | Published

decedent's will or under the provisions of section 732.401(1), Florida Statutes (1983).[1] The district

Hubert v. Hubert

622 So. 2d 1049, 1993 WL 281074

District Court of Appeal of Florida | Filed: Jul 28, 1993 | Docket: 547048

Cited 7 times | Published

lineal descendant has a vested remainder [section 732.401(1), Florida Statutes (1991)], and both the

Hartwell v. Blasingame

564 So. 2d 543, 1990 WL 91875

District Court of Appeal of Florida | Filed: Jul 6, 1990 | Docket: 1294585

Cited 6 times | Published

an heir or lineal descendant, pursuant to section 732.401(1), Florida Statutes (1987), do not give her

In Re Estate of Scholtz

543 So. 2d 219, 14 Fla. L. Weekly 230, 1989 Fla. LEXIS 396, 1989 WL 47680

Supreme Court of Florida | Filed: May 4, 1989 | Docket: 1729730

Cited 6 times | Published

and the surviving spouse. At the same time, section 732.401, Florida Statutes (1985), *221 which provides

Cavanaugh v. Cavanaugh

542 So. 2d 1345, 1989 WL 44492

District Court of Appeal of Florida | Filed: Apr 21, 1989 | Docket: 1515853

Cited 6 times | Published

Florida Constitution, and section 732.401(1), Florida Statutes.[2] Section 732.401(1) provides: If not devised

Clemons v. Thornton

993 So. 2d 1054, 2008 Fla. App. LEXIS 3308, 2008 WL 624863

District Court of Appeal of Florida | Filed: Mar 10, 2008 | Docket: 64856320

Cited 5 times | Published

in being at the time of the decedent’s death.” § 732.401(1), Fla. Stat. (2000). The failure of Mr. Clemons’s

Wadsworth v. First Union Nat. Bank

564 So. 2d 634, 1990 WL 109473

District Court of Appeal of Florida | Filed: Aug 2, 1990 | Docket: 1294186

Cited 5 times | Published

property properly went under the will. Because section 732.401, above set out, defines how homestead property

In Re Estate of Boyd

519 So. 2d 692, 13 Fla. L. Weekly 334, 1988 Fla. App. LEXIS 345, 1988 WL 6063

District Court of Appeal of Florida | Filed: Feb 3, 1988 | Docket: 1332301

Cited 5 times | Published

living apart at the time of the owner's death. Section 732.401 provides that the homestead property will descend

In Re Estate of Finch

401 So. 2d 1308

Supreme Court of Florida | Filed: Jun 18, 1981 | Docket: 1686516

Cited 5 times | Published

the property should descend as provided in section 732.401(1), Florida Statutes (1977). Article X, section

Burdick v. Burdick

399 So. 2d 410

District Court of Appeal of Florida | Filed: Jun 2, 1981 | Docket: 1652317

Cited 5 times | Published

the law of intestate succession, pursuant to Section 732.401(1), Florida Statutes (1977). There is a presumption

Moxley v. Wickes Corp.

356 So. 2d 785

Supreme Court of Florida | Filed: Jan 26, 1978 | Docket: 1739790

Cited 5 times | Published

is found not only in the express language of § 732.401(2), Fla. Stat. (1975), but also by virtue of the

In Re Estate of Wall

502 So. 2d 531, 12 Fla. L. Weekly 559

District Court of Appeal of Florida | Filed: Feb 18, 1987 | Docket: 1657666

Cited 4 times | Published

the benefits of the homestead law. Fla. Stat. § 732.401, § 732.4015; Fla. Const. Art. X, Sec. 4. The trial

In Re Estate of Ritz

385 So. 2d 1102

District Court of Appeal of Florida | Filed: Jun 18, 1980 | Docket: 1337460

Cited 4 times | Published

J., and ORFINGER, J., concur. NOTES [1] See § 732.401, Fla. Stat. [2] Article X, Section 4(c) of the

Dr. Ross G. Stone v. Nancy Stone and Alma Stone

157 So. 3d 295, 2014 Fla. App. LEXIS 18431, 2014 WL 5834826

District Court of Appeal of Florida | Filed: Nov 12, 2014 | Docket: 2595484

Cited 3 times | Published

intestate, pursuant to section 732.401, Florida Statutes (2011). If section 732.401 were applied, upon Jerome’s

Aronson v. Aronson

81 So. 3d 515, 2012 WL 280565, 2012 Fla. App. LEXIS 1343

District Court of Appeal of Florida | Filed: Feb 1, 2012 | Docket: 2416018

Cited 3 times | Published

2d 693, 697 (Fla. 4th DCA 2006). Finally, section 732.401(1) of the Florida Statutes (2001), provides:

In Re Williams

427 B.R. 541, 22 Fla. L. Weekly Fed. B 371, 2010 Bankr. LEXIS 1010, 2010 WL 1553456

United States Bankruptcy Court, M.D. Florida | Filed: Mar 31, 2010 | Docket: 1488416

Cited 3 times | Published

interest that is recognized under Florida law. Section 732.401 of the Florida Statutes, for example, provides:

Warburton v. McKean

877 So. 2d 50, 2004 WL 1257519

District Court of Appeal of Florida | Filed: Jun 9, 2004 | Docket: 1285013

Cited 3 times | Published

limitation. Art. X, § 4(c), Fla. Const (2002); § 732.401(1), Fla. Stat. (2002); City Nat'l Bank of Fla

King v. Ellison

648 So. 2d 666, 1994 WL 597615

Supreme Court of Florida | Filed: Nov 3, 1994 | Docket: 1342326

Cited 3 times | Published

the following certified question: WHETHER SECTION 732.401(1), FLORIDA STATUTES (1991), WHICH VESTS A

Ostyn v. Olympic

455 So. 2d 1137

District Court of Appeal of Florida | Filed: Sep 19, 1984 | Docket: 1692586

Cited 3 times | Published

supra, is now part of Florida statutory law. § 732.401(2), Fla. Stat. (1983). That section of the statutes

Sigmund v. Elder

631 So. 2d 329, 1994 WL 23247

District Court of Appeal of Florida | Filed: Feb 1, 1994 | Docket: 1465031

Cited 2 times | Published

possessed a remainder interest, in accordance with section 732.401, Florida Statutes (1991). *331 On appeal, Ruth

Jacobs v. Jacobs

633 So. 2d 30, 1994 WL 20932

District Court of Appeal of Florida | Filed: Jan 28, 1994 | Docket: 1707985

Cited 2 times | Published

Constitution, Article X, section 4(c) and section 732.401(1), Florida Statutes she could receive nothing

In Re Estate of Donovan

550 So. 2d 37, 1989 WL 95303

District Court of Appeal of Florida | Filed: Aug 16, 1989 | Docket: 1370622

Cited 2 times | Published

X, section 4(c), Florida Constitution, and section 732.401(1), Florida Statutes (1985). Such a disposition

Garris v. Cruce

404 So. 2d 785

District Court of Appeal of Florida | Filed: Oct 1, 1981 | Docket: 1782555

Cited 2 times | Published

lineal descendant of James H. Cruce pursuant to Section 732.401, Florida Statutes, to one-third of the homestead

BAYVIEW LOAN SERVICING, LLC v. Giblin

9 So. 3d 1276, 2009 Fla. App. LEXIS 3867, 2009 WL 1139236

District Court of Appeal of Florida | Filed: Apr 29, 2009 | Docket: 1667724

Cited 1 times | Published

Nivia Giblin, and his descendents. We affirm. See § 732.401(1) Fla. Stat. (2001); King v. Ellison, 648 So

In Re Amendments to the Fl. Probate Rules

964 So. 2d 140, 32 Fla. L. Weekly Supp. 505, 2007 Fla. LEXIS 1234, 2007 WL 2002458

Supreme Court of Florida | Filed: Jul 12, 2007 | Docket: 1689866

Cited 1 times | Published

201(29)(31), Fla. Stat. General definitions. § 732.401, Fla. Stat. Descent of homestead. § 732.4015,

Davis v. Davis

864 So. 2d 458, 2003 WL 23005382

District Court of Appeal of Florida | Filed: Dec 24, 2003 | Docket: 1426339

Cited 1 times | Published

and improvements descend in accordance with section 732.401(1), Florida Statutes (2000).[2] The appellee

Van Pelt v. Estate of Clarke

476 So. 2d 746, 10 Fla. L. Weekly 2302

District Court of Appeal of Florida | Filed: Oct 8, 1985 | Docket: 1277596

Cited 1 times | Published

contending it should descend pursuant to Section 732.401(1), Florida Statutes (1983), which provides

In re the Estate of Finch

383 So. 2d 755, 1980 Fla. App. LEXIS 16176

District Court of Appeal of Florida | Filed: May 14, 1980 | Docket: 64576100

Cited 1 times | Published

the property should descend as provided in Section 732.401(1), Florida Statutes (1977). The trial court

Jorge Mendia v. Abraham Figueroa Galvez

District Court of Appeal of Florida | Filed: Aug 27, 2025 | Docket: 71209990

Published

law. Art. X, § 4(c), Fla. Const. See also § 732.401(1), Fla. Stat. (2021) (“If not devised as authorized

James E. Rogers v. Guardianship Program of Dade County, Inc.

District Court of Appeal of Florida | Filed: Mar 12, 2025 | Docket: 69729030

Published

7 See also § 732.401(1), Fla. Stat. (2022) (“If not devised as authorized

In Re: Amendments to Florida Probate Rules

Supreme Court of Florida | Filed: Jul 3, 2024 | Docket: 68913248

Published

Stat. Valuation of the elective estate. § 732.401, Fla. Stat. Descent of homestead.

Benzo Elias Rudnikas v. Mercedes Gisela Gonzalez

District Court of Appeal of Florida | Filed: Mar 27, 2024 | Docket: 68380022

Published

way of intestate succession, as provided in section 732.401(1), Florida Statutes (2021). See In re Finch’s

JONATHAN STIRBERG and JESSICA STIRBERG v. HENRY H. FEIN, in his capacity of Successor Co-Trustee of the NAT STIRBERG REVOCABLE RESIDENCE TRUST

District Court of Appeal of Florida | Filed: Mar 15, 2023 | Docket: 67012431

Published

was an abuse of discretion. We agree. Section 732.401, Florida Statutes (2022), titled “Descent of

ROBERT FELDMAN, etc. v. JEFFREY SCHOCKET

District Court of Appeal of Florida | Filed: Sep 21, 2022 | Docket: 65363928

Published

Patricia M. Silver’s estate pursuant to Florida Statute §732.401 or Florida Statute §732.4015.

In Re: Amendments to the Florida Probate Rules - 2021 Fast-Track Report

Supreme Court of Florida | Filed: Nov 4, 2021 | Docket: 60698371

Published

201(33), Fla. Stat. General definitions. § 732.401, Fla. Stat. Descent of homestead.

Mullins v. Mullins

274 So. 3d 513

District Court of Appeal of Florida | Filed: Jun 7, 2019 | Docket: 64718341

Published

inures to lineal descendants by virtue of section 732.401(1), Florida Statutes ). Nevertheless, Kenneth

Mullins v. Mullins

274 So. 3d 513

District Court of Appeal of Florida | Filed: Jun 7, 2019 | Docket: 64718340

Published

inures to lineal descendants by virtue of section 732.401(1), Florida Statutes ). Nevertheless, Kenneth

RICHARD ALAN SAMAD v. STELLA PLA

267 So. 3d 476

District Court of Appeal of Florida | Filed: Mar 15, 2019 | Docket: 14717610

Published

homestead property as a tenant in common under section 732.401(2), Florida Statutes (2017), and deemed Pla's

Friscia v. Friscia

161 So. 3d 513, 2014 Fla. App. LEXIS 13251, 2014 WL 4212689

District Court of Appeal of Florida | Filed: Aug 27, 2014 | Docket: 1165067

Published

survived by a spouse and at least one descendant. § 732.401(1), Fla. Stat. (2010). In those cases, the surviving

In Re Amendments to the Florida Probate Rules

50 So. 3d 578, 35 Fla. L. Weekly Supp. 482, 2010 Fla. LEXIS 1455, 2010 WL 3431722

Supreme Court of Florida | Filed: Sep 2, 2010 | Docket: 2396382

Published

062(4), Fla. Stat. Annual tax information reports. § 732.401, Fla. Stat. Descent of homestead. § 732.4015,

In re Amendments to the Florida Probate Rules

912 So. 2d 1178, 30 Fla. L. Weekly Supp. 666, 2005 Fla. LEXIS 1917, 2005 WL 2385258

Supreme Court of Florida | Filed: Sep 29, 2005 | Docket: 64840686

Published

Committee notes revised. Statutory References § 732,401, Fla. Stat. Descent of homestead. § 732,4015,

Amendments to the Florida Probate Rules

848 So. 2d 1069, 28 Fla. L. Weekly Supp. 495, 2003 Fla. LEXIS 1063, 2003 WL 21402500

Supreme Court of Florida | Filed: Jun 19, 2003 | Docket: 64823856

Published

062(4), Fla. Stat. Annual tax information reports. § 732.401, Fla. Stat. Descent of homestead. § 732.4015,

Amendments to the Florida Probate Rules

824 So. 2d 849, 27 Fla. L. Weekly Supp. 423, 2002 Fla. LEXIS 873, 2002 WL 825699

Supreme Court of Florida | Filed: May 2, 2002 | Docket: 64817121

Published

062(4), Fla. Stat. Annual tax information reports. § 732.401, Fla. Stat. Descent of homestead. § 732.4015,

Amendments to Florida Probate Rules

807 So. 2d 622, 26 Fla. L. Weekly Supp. 663, 2001 Fla. LEXIS 2009, 2001 WL 1194323

Supreme Court of Florida | Filed: Oct 11, 2001 | Docket: 64812578

Published

062(4), Fla. Stat. Annual tax information reports. § 732.401, Fla. Stat. Descent of homestead. § 732.4015,

King v. Ellison

622 So. 2d 598, 1993 Fla. App. LEXIS 8339, 1993 WL 302782

District Court of Appeal of Florida | Filed: Aug 11, 1993 | Docket: 64698167

Published

Hubert’s lineal descendants, pursuant to section 732.401(1), Florida Statutes. The appellees purchased

In re Amendments to the Florida Probate Rules

607 So. 2d 1306, 17 Fla. L. Weekly Supp. 636, 1992 Fla. LEXIS 1622, 1992 WL 249483

Supreme Court of Florida | Filed: Sep 24, 1992 | Docket: 64671175

Published

731.104, Fla.Stat. Verification of documents. § 732,401, Fla.Stat. Descent of homestead. 732.4015, Fla

Breausche v. Prough

592 So. 2d 1211, 1992 Fla. App. LEXIS 397, 1992 WL 9717

District Court of Appeal of Florida | Filed: Jan 24, 1992 | Docket: 64664851

Published

that she had only a life, estate pursuant to section 732.401, Florida Statutes (1.991), and that the remainder

Sun First National Bank of Polk County v. Fry

579 So. 2d 869, 1991 Fla. App. LEXIS 4740, 1991 WL 85551

District Court of Appeal of Florida | Filed: May 22, 1991 | Docket: 64658815

Published

Const.; § 732.4015, Fla.Stat. (1989). Under section 732.401(1), Florida Statutes (1989), if the homestead

Paredes v. McLucas

561 So. 2d 439, 1990 Fla. App. LEXIS 3490, 1990 WL 64114

District Court of Appeal of Florida | Filed: May 17, 1990 | Docket: 64650667

Published

property and allowances as provided in part IV [Section 732.401, et seq.]. A literal interpretation of these

Grant v. Norris

558 So. 2d 208, 1990 Fla. App. LEXIS 1884, 1990 WL 31733

District Court of Appeal of Florida | Filed: Mar 23, 1990 | Docket: 64648813

Published

merely “a share of the estate of the decedent.” § 732.401(1), Fla. Stat. (1987). Moreover, “exempt property”

Donovan v. Hendrickson

550 So. 2d 37, 14 Fla. L. Weekly 1958, 1989 Fla. App. LEXIS 4664

District Court of Appeal of Florida | Filed: Aug 16, 1989 | Docket: 64645477

Published

X, section 4(c), Florida Constitution, and section 732.401(1), Florida Statutes (1985). Such a disposition

Florida Bar

537 So. 2d 500, 13 Fla. L. Weekly 601, 1988 Fla. LEXIS 1463, 1988 WL 143178

Supreme Court of Florida | Filed: Sep 29, 1988 | Docket: 64640022

Published

199.062(4) Annual tax information reports. F.S. 732.401 Descent of homestead. F.S. 732.4015 Devise of

Florida Bar

531 So. 2d 1261, 13 Fla. L. Weekly 601, 1988 Fla. LEXIS 1475, 1988 WL 53983

Supreme Court of Florida | Filed: Sep 29, 1988 | Docket: 64637451

Published

199.062(4) Annual tax information reports. F.S. 732.401 Descent of homestead. F.S. 732.4015 Devise of

Kelley v. Flagship National Bank of Boynton Beach

502 So. 2d 531, 12 Fla. L. Weekly 559, 1987 Fla. App. LEXIS 6820

District Court of Appeal of Florida | Filed: Feb 18, 1987 | Docket: 64625068

Published

the benefits of the homestead law. Fla. Stat. § 732.401, § 732.4015; Fla. Const. Art. X, Sec. 4. The trial

Florida Bar re Amendment to Rules

458 So. 2d 1079, 9 Fla. L. Weekly 401, 1984 Fla. LEXIS 3390

Supreme Court of Florida | Filed: Sep 13, 1984 | Docket: 64608151

Published

193.052(7) Preparation and filing of returns. F.S. 732.401 Descent of homestead. F.S. 732.4015 Devise of

Pierrepont v. Humphreys

413 So. 2d 140, 1982 Fla. App. LEXIS 19920

District Court of Appeal of Florida | Filed: Apr 28, 1982 | Docket: 64589610

Published

This amendment was after Mr. Newman’s death. . § 732.401, Fla.Stat. (1981), formerly § 731.27, Fla.Stat

Mullen v. Coryell (In re Coryell)

12 B.R. 245, 1981 Bankr. LEXIS 3562

United States Bankruptcy Court, S.D. Florida. | Filed: Jun 12, 1981 | Docket: 65777930

Published

pursuant to former § 731.27, Fla.Stat. (1961), now § 732.401, Fla.Stat. (1979). *24831. The transfer evidenced

In re Estate of Yanowsky

384 So. 2d 1297, 1980 Fla. App. LEXIS 16242

District Court of Appeal of Florida | Filed: May 30, 1980 | Docket: 64576828

Published

have any interest in the bond. . . . ” . Section 732.401(2), Florida Statutes (1977), provides: (2)

In re the Estate of Finch

372 So. 2d 532, 1979 Fla. App. LEXIS 14979

District Court of Appeal of Florida | Filed: Jun 29, 1979 | Docket: 64570871

Published

homestead to pass by intestacy laws as required in Section 732.401(1), Florida Statutes (Supp.1976). Whenever