The Short Answer

In Florida, a surviving spouse may receive a life estate in a decedent’s homestead by operation of law in certain situations, and the spouse may also have a statutory option to elect a different form of ownership. Whether a co-owner can force a partition (sale or division) depends heavily on how title is held (life estate vs. tenancy in common), whether the property is protected homestead, and who the other co-owners are.

What Florida Law Says

Florida’s homestead descent rules can give a surviving spouse strong occupancy/ownership rights when the decedent owned protected homestead and is survived by both a spouse and descendants. Separately, Florida partition law generally allows a co-owner with a present ownership interest (like a tenant in common) to file a partition action against other co-owners—often creating pressure to sell if the parties cannot agree.

The Statute

The primary law governing a surviving spouse’s life estate/election in homestead is Fla. Stat. § 732.401.

This statute establishes that when a decedent is survived by a spouse and one or more descendants, the spouse generally takes a life estate in the homestead (with descendants holding the remainder), but the spouse may elect instead to take an undivided one-half interest as a tenant in common (subject to strict timing and recording requirements).

The primary statute authorizing partition actions by co-owners is Fla. Stat. § 64.031.

This statute provides that a partition action may be filed by joint tenants or tenants in common against their cotenants and others interested in the land to be divided.

How this impacts a partition threat: If you hold only a life estate, and the other party holds a remainder interest, the rights are different than if you and the other party are tenants in common. A co-owner with a present possessory ownership interest may have more leverage to pursue partition than someone who only holds a future interest—so the exact deed/probate posture matters.

For a deeper discussion of partition generally, see our related article: How does a partition action work in Florida for co-owned or inherited property?. For homestead occupancy disputes, see: Can a surviving spouse stay in the home if adult children contest the estate in Florida?.

Why You Should Speak with an Attorney

While the statutes provide the general framework, applying them to your specific property and co-ownership situation is rarely simple. Legal outcomes often depend on:

• Strict Deadlines: The homestead election option under Fla. Stat. § 732.401 must generally be made within 6 months of death and is irrevocable once made.
• Burden of Proof: You may need to establish whether the property was the decedent’s protected homestead and how title was held at death (for example, homestead rules do not apply the same way if the property passed by survivorship).
• Exceptions and Title Traps: Homestead descent rules and partition rights can change dramatically depending on whether the property was held as tenancy by the entireties, joint tenancy with right of survivorship, or solely in the decedent’s name, and whether the “co-owner” is a descendant/remainderman or an unrelated tenant in common.

Because a partition lawsuit can move quickly toward a forced sale and because homestead elections can be time-sensitive and permanent, it is worth getting advice early—before you inadvertently weaken your negotiating position or lose an election right.

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Disclaimer: This article provides general information under Florida law and does not create an attorney-client relationship. Laws change frequently. For legal advice specific to your situation, please consult with a licensed attorney.