What Property Is Exempt From Probate in Florida?

What Property Is Exempt From Probate in Florida?

The question has two correct answers, and I separate them at the first meeting because families who blur them together make expensive decisions.

Protected homestead is not part of the probate estate at all. The Florida Constitution provides that the homestead exemption inures to the surviving spouse or heirs of the owner, so the interest passes at the moment of death. Administration never reaches it.

Exempt property works the other way. Household furnishings, two cars and college savings accounts are estate property, and Florida law then exempts them from claims against the estate once the court determines them. The protection applies inside the estate rather than outside it, and it has a deadline.

A third group of assets skips probate for a reason that is not an exemption at all, which is that somebody filled in a beneficiary designation years ago. The section further down keeps that separate, because calling it an exemption leads people to think the law will protect an account the law never sees.

Protected Homestead Is Not an Estate Asset

Florida law states the carve-out twice, in nearly identical words. The personal representative takes possession or control of the decedent's property except the protected homestead. The assets in the personal representative's hands for paying devises, claims, taxes and the expenses of administration are all the decedent's property except the protected homestead.

So the person running the estate has no authority to sell the house, and cannot use it to pay estate debts. Florida law does allow the personal representative to take possession of apparent homestead for the limited purpose of preserving, insuring and protecting it, pending a determination of its homestead status, and gives a lien for what is spent. The people who inherit the homestead have no personal liability for that debt.

Two ownership forms are outside protected homestead by definition. Property owned in tenancy by the entireties or in joint tenancy with rights of survivorship is not protected homestead for probate purposes, because it passes to the surviving owner automatically and never becomes estate property at all. Getting a written order on the status is covered on the petition to determine homestead.

Practice pointer. I ask how the deed reads before I answer any question about the house, because the answer changes completely depending on whether two names appear on it. Families describe the same house three different ways in one conversation, and only the deed settles it.

Exempt Property Under Florida Law

Exempt property belongs to the surviving spouse, or if there is no surviving spouse, to the children of the decedent. The right exists only where the decedent was domiciled in Florida at death. I give clients the list on paper, because it is closed at four categories and the dollar figure is exact rather than approximate.

Exempt property is exempt from all claims against the estate except perfected security interests on the property itself. A financed car stays subject to the finance company. The exemption works against the general creditors of the estate rather than against the lender who holds paper on the specific item.

Two further rules decide real cases. Property that the will specifically or demonstratively devised to somebody is excluded from exempt property, although a person who would otherwise have been entitled can still ask the court to determine it exempt from claims. And exempt property is in addition to protected homestead, in addition to statutory entitlements, and in addition to whatever the person takes under the will or by intestacy, so receiving it costs the recipient nothing from their share. It is excluded from the value of the estate before the residuary, intestate, pretermitted and elective shares are calculated at all.

The Deadline That Erases the Exemption

Exempt property is the one protection on this page that disappears through silence, and I calendar it the day the notice of administration is served.

Florida law provides that the persons entitled to exempt property are deemed to have waived their rights unless a petition for determination of exempt property is filed on or before the later of four months after the date of service of the notice of administration, or forty days after the termination of any proceeding involving the construction, admission to probate or validity of the will.

Read that sentence again with the word "deemed" in view. Nobody has to object. Nobody has to raise it. A surviving spouse who simply does not file loses the $20,000 of furnishings and both vehicles, and that property falls back into the pool the creditors are paid from.

Avoid assuming the personal representative will handle it. The petition is filed by or on behalf of the persons entitled to the exempt property, which is frequently a different person from the one administering the estate, and in a second-marriage estate it is very often somebody whose interests the personal representative does not represent.

Assets That Skip Probate for a Different Reason

A large share of what people call exempt is not exempt at all, and I separate the two before anyone counts on a protection that is not there. The asset simply never enters the estate, because of what is written on the account.

Exempt property and protected homestead are different categories that get merged in conversation. The homestead has its own determination, covered in the petition to determine homestead, and it is protected by the constitution rather than by the exempt-property statute. A surviving spouse who wants more than either can claim the elective share, and a beneficiary who wants less can use a disclaimer.

A bank account with a payable on death designation passes to the named person at death. So does a retirement account with a living beneficiary, a life insurance policy, and an account held jointly with rights of survivorship. Real property held under a lady bird deed passes to the named remainder beneficiary the same way. None of that involves an exemption. It is a titling outcome, and it is reversible in either direction while the owner is alive.

The practical difference matters when something goes wrong. An exemption is a protection the law supplies whatever the paperwork says. A beneficiary designation is only as good as the form on file, and I have seen forms naming a predeceased spouse, forms naming an ex-spouse, and accounts where the bank had no form at all and said so only after the death. More on the account side is on payable on death and TOD accounts in Florida.

Do the Creditors Get the Furniture?

Clients are often confused about what a creditor can actually reach, and ask me, "Can they come and take my mother's things?" For the furniture in her usual home, up to the statutory net value, and for two of the cars, the answer is no once the court determines the property exempt, and the person asking is usually the one entitled to file for it. What I want to know first is the date the notice of administration was served, because the right is waived by silence rather than by any decision anyone makes.

How Long Can Creditors Come After an Estate?

Two clocks run at the same time and they answer different questions, so I write both dates at the top of the file.

The first is the claims period. A claim against the decedent is not binding on the estate, the personal representative or any beneficiary unless it is filed by the later of three months after the first publication of the notice to creditors, or thirty days after the date of service on a creditor who was entitled to be served with a copy. A claim filed late is barred even if nobody objects, unless the court extends the time, and an extension is available only on grounds of fraud, estoppel or insufficient notice of the claims period.

The second is the outer limit. Two years after the date of death, neither the estate, the personal representative nor the beneficiaries are liable for a claim or cause of action against the decedent, whether or not letters of administration have been issued. That clause is the reason an estate nobody opened does not stay exposed forever.

Neither limit touches a recorded lien. The two-year bar expressly does not affect the lien of a duly recorded mortgage or security interest, or the right to foreclose it. Creditor notice mechanics are on the Florida notice of administration.

Why People Think They Have to Wait Six Months

The six-month figure is real, and I have to correct it in most first meetings because it belongs to somebody else.

The creditor claims period is three months from the first publication, not six. The number that is genuinely six months is the surviving spouse's homestead election, which is the choice to take an undivided one-half interest in the homestead as a tenant in common instead of a life estate. That election must be made within six months after the date of death and during the spouse's lifetime, the statute says the time may not be extended outside one narrow circumstance, and once made it is irrevocable.

So two clocks, two people, two starting points. The creditor clock starts when the notice is published. The election clock starts on the date of death, which means 3 or 4 of the 6 months can be gone before anyone has opened a probate file at all, and I have taken calls where it had already run.

Frequently Asked Questions

Common Situations

The waiver nobody chose. A widow in Brevard County assumed the lawyer handling her husband's estate was protecting the household contents. The notice of administration had been served five months earlier, no petition for determination of exempt property was ever filed, and the statute deems the rights waived. The counterfactual is a single petition filed inside four months, which costs a small fraction of what the furniture was worth.

The third car. A Pasco County family owned four vehicles, including a work truck over the weight limit. Two of the passenger vehicles qualified. The truck did not, and neither did the fourth car, so both became ordinary estate assets available to pay claims. Knowing the rule in advance would have let the family choose which two to claim rather than learning the limit after the fact.

Sources of Law

• Fla. Stat. §732.402(1) (right of the surviving spouse, or the children if none, where the decedent was domiciled in Florida); (2)(a) (household furniture, furnishings and appliances in the decedent's usual place of abode up to a net value of $20,000 as of the date of death); (2)(b) (two motor vehicles as defined in s. 316.003 not individually exceeding 15,000 pounds gross vehicle weight, held in the decedent's name and regularly used by the decedent or immediate family); (2)(c) (all qualified tuition programs authorized by IRC §529, including Florida Prepaid contracts and participation agreements); (2)(d) (benefits paid under Fla. Stat. §112.1915); (3) (exempt from all claims against the estate except perfected security interests); (4) (in addition to protected homestead, statutory entitlements, and property passing by will or intestacy); (5) (specifically or demonstratively devised property excluded, with a route to a determination anyway); (6) (rights deemed waived unless a petition is filed by the later of 4 months after service of the notice of administration or 40 days after termination of a will proceeding); (7) (excluded from estate value before residuary, intestate, pretermitted or elective shares).
• Fla. Stat. §733.607(1) and §733.608(1) (both excepting the protected homestead); §733.608(2) (authority, but not a requirement, to preserve and insure apparent homestead pending a determination of its homestead status); §733.608(3)(b) (no personal liability of the persons interested in the protected homestead for the preservation debt). Fla. Stat. §731.201(33) (protected homestead defined; entireties and joint tenancy with rights of survivorship excluded).
• Fla. Stat. §733.702(1) (claims not binding unless filed by the later of 3 months after first publication of the notice to creditors or 30 days after service on a served creditor); (3) (late claims barred absent a court extension, available only on grounds of fraud, estoppel or insufficient notice). Fla. Stat. §733.710(1) (2-year bar, whether or not letters have been issued); (3) (does not affect a duly recorded mortgage or security interest or the right to foreclose).
• Fla. Stat. §732.401(2)(b), (2)(d) (the surviving spouse's one-half election, 6 months after death, not extendable outside the narrow attorney-in-fact or guardian circumstance, and irrevocable once made). Art. X, §4(a)(1), (b), Fla. Const. (forced-sale exemption; the exemptions inure to the surviving spouse or heirs of the owner). Constitutional text retrieved from flsenate.gov 2026-09-07.
• ⚠ Whether a specific item is exempt depends on the facts. Domicile, titling, how the property was used, what the will says about it, and whether a lien is perfected all change the answer. Nothing here predicts what a court will determine in any estate. Confirm your own position before distributing anything.
• Advertised fees are honored for 90 days from the posted date. Government costs, including filing fees, publication, recording and certified copies, are additional and passed through at cost. General information about Florida law, not legal advice.

What I See in These Files

In 14 years of law practice the exempt property petition is the cheapest filing in a Florida probate and the one most often skipped. I have a few take-home points about why.

The first is that the word exempt is doing two jobs. Families hear that the house is exempt and conclude the furniture is handled too, and the two protections have nothing in common except the label. The homestead passes by force of the constitution whether anyone acts or not. The furniture and the cars are protected only if somebody files, and the statute says the rights are deemed waived otherwise. I would rather explain that distinction once, early, than explain a waiver afterward.

The second is who has to act. The petition is brought by or for the people entitled to the property, and in a second marriage those people and the personal representative are frequently different people with different lawyers. I raise the deadline directly with the surviving spouse rather than assuming it travels through the administration, because in the estates where it was missed there was usually someone who believed it was somebody else's job.

Avoid treating the two-year bar as a reason to leave an estate unopened. It does end unsecured claims, and it does nothing at all about a recorded mortgage, which keeps accruing and stays foreclosable while the family waits.

Updated on September 14, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. General information about Florida law, not legal advice, and no attorney-client relationship is created. What is exempt in your estate depends on your facts, which we confirm at a free consult.