What Is a Petition to Determine Homestead Status in Florida Probate?

Protected homestead is treated differently from other estate property. A personal representative must take possession or control of the decedent's property, but that duty excludes protected homestead. For probate purposes, property owned as tenants by the entireties or in joint tenancy with right of survivorship is not protected homestead.

The petition must be verified and must state the petitioner's interest, the date of death, the county of domicile at death, and whether the decedent died with or without a will. It must also state whether a spouse survived, including the spouse's name and whether and how the spouse waived homestead rights, and list surviving descendants, identifying any minor children by name and year of birth.

Property details are required too. The petition gives a legal description of the property, whether it was the decedent's domicile or, if not, whether it was located within a municipality and was the domicile of a member of the decedent's family, and how title was held at death, along with any other supporting facts.

The petition must be served on interested persons by formal notice. The court's order must describe the real property and determine whether any of it was protected homestead. The underlying protection comes from the Florida Constitution. Limits on leaving a homestead by will are covered in homestead devise limits in Florida.