Homestead Rights And The Need For Prenuptial Or Post-Nuptial Agreements

Many people get remarried after the death or divorce of a previous spouse. Often times this second marriage takes place after the individual has paid off most or all of his or her home, and kept the title to the home in just the name of the surviving spouse (or divorced spouse).

In order to be considered Homestead in Florida the following must apply:

  • It must be the main residence that is classified as Homestead
  • If located within the municipality/city Homestead applies to no more than one half acre


  • If located outside the municipality/city Homestead applies to no more than 160 contiguous (meaning they are all joined not 100 acres here and 60 acres down the road a few miles with someone else’s land in between) acres

Upon the death of the home owner spouse when no Prenuptial or Post-Nuptial Agreement exists, Florida Law allows this new spouse to choose one of two options for the Homestead Property even though they have not contributed to the mortgage payments:

  • They may have a life estate, which would allow them to live in the home until they die, as long as they keep the property up and taxes current.


  • Within 6 months of the death of the homeowner spouse, the new spouse may elect to sell the home and take 50% of the proceeds EVEN IF YOU INTEND TO LEAVE YOUR HOME TO YOUR CHILDREN.

However, these Homestead rights can be eliminated with a Prenuptial or Post-nuptial Agreement.

If you have questions or concerns about your rights please call Staples, Ellis + Associates, P.A. during office hours at 850-432-4143 or after office hours at 850-384-3699 or email us at

Posted in: Family Law