What rights does a surviving spouse have to remain in a home when adult children contest the estate? - Florida
The Short Answer
In Florida, a surviving spouse often has strong rights tied to the decedent’s homestead, and those rights can allow the spouse to remain in the home even if adult children are disputing the estate. However, the spouse’s exact right to stay (and whether the children can force a sale) depends on whether the property qualifies as Florida homestead and how title passes at death.
What Florida Law Says
Florida treats a primary residence differently from other assets. If the home is protected homestead and the decedent was survived by a spouse and descendants (including adult children), Florida law can give the surviving spouse a continuing property interest that is not simply “whatever the will says.” In many families, that homestead interest is the key reason a spouse can remain in the home during and after an estate dispute.
If the decedent did not (or could not) validly devise the homestead, Florida law generally provides the surviving spouse a life estate in the homestead (with the children holding the remainder), and the spouse may have an alternative election to take a one-half interest as a tenant in common instead. Those choices can dramatically affect whether the spouse can stay in the home long-term and whether the adult children can later seek a partition/sale.
Related reading: Does joint ownership between spouses change who inherits the property in Florida? and How do I figure out my inheritance rights to a family property in Florida?.
The Statute
The primary law governing this issue is Fla. Stat. § 732.401.
This statute establishes that when protected homestead is not devised as authorized, and the decedent is survived by a spouse and descendants, the surviving spouse generally takes a life estate in the homestead (with the descendants receiving the remainder), with an option for the spouse to elect an undivided one-half interest as a tenant in common instead.
Why You Should Speak with an Attorney
While the statute provides the general rule, applying it to your specific situation is rarely simple—especially when adult children are contesting the estate. Legal outcomes often depend on:
- Strict Deadlines: If the spouse is considering the homestead election (life estate vs. one-half tenancy in common), Florida law imposes a tight timeline—generally within 6 months after death. See Fla. Stat. § 732.401(2).
- Burden of Proof: Whether the property is actually “homestead” (and whether it was properly titled, occupied, and claimed) can become a contested factual issue that affects who has the right to possess the home.
- Exceptions and Title Traps: Homestead rules interact with how the home was owned (for example, tenancy by the entireties or survivorship ownership may change what goes through probate). See Fla. Stat. § 732.401(5).
When adult children contest the estate, it can quickly turn into litigation over possession, expenses, and whether the home can be sold. Trying to handle this alone can lead to missed elections, avoidable hearings, or a court order that changes leverage in the dispute.
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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.