Article X, Section 4(c): The “Actually” Guy of Florida Real Estate Law

A version of this article appeared in the April 2026 issue of Elevate, the official newsletter of the Realtor Association of Sarasota Manatee.

We all know an Actually Guy. He’s the one who corrects your pronunciation of “pho” and reminds you it’s just sparkling wine if it’s not from France.

Florida real estate law has its very own Actually Guy, and he’s more than just a party-pooper; he can be a deal-killer. He lives inside Article X, Section 4(c) of the Florida Constitution, and he doesn’t care about your client’s intent or what their will says. He only cares about one thing: Homestead¹Devise Restrictions, which prevent a Florida homestead owner from freely devising the property if the homeowner is survived by a spouse or minor child.

Here are three common ways the Actually Guy can appear in practice. For each, assume there is no valid prenuptial or post-nuptial agreement in place.

The Parent Trap

A widowed homeowner with adult children from a prior marriage remarries. He dies, and his will directs that the homestead passes outright to his adult children — honoring a promise he made to his late wife. The children, waving the will, call you to list the property. But…

Actually! A surviving spouse cannot be entirely disinherited from the homestead. Regardless of what the will says, the spouse is entitled to a life estate by operation of law, with the children holding a remainder interest, though the spouse can also elect to take an undivided one-half interest as a tenant in common. Either way, the children do not take outright, and nobody planned for any of it. The spouse wants to stay. The children want to sell. A closing is not happening until that conflict is resolved.

Gone Girl

A homeowner separates from his spouse but never legally divorces. He starts a new relationship, and before he dies he executes a Lady Bird deed giving himself a life estate and naming his girlfriend as the remainder beneficiary. There are no children. On its face, the deed looks like a clean transfer. The girlfriend believes she is the rightful owner and calls you to list the property. But…

Actually! Since the homeowner was still legally married when he signed that deed, separated or not, the spouse was required to join in the conveyance. Without that joinder, the deed was void at inception. And with no children, the surviving spouse takes the homestead outright under Florida’s constitutional scheme, regardless of what the deed says.

Home Alone

A homeowner with a minor child places the homestead in a revocable living trust, naming his spouse as sole beneficiary. He dies. The surviving spouse, now acting as successor trustee, calls you to list the property, confident that the trust handled everything cleanly and probate was avoided. But…

Actually! A homeowner survived by a minor child cannot freely devise the homestead, not even into a trust, and not even to a spouse. The constitutional restrictions follow the property, not the vessel holding title, meaning the trust doesn’t change the analysis. The minor child has a protected interest in that homestead, and no closing happens without accounting for it.

What to Watch For

Some issues have practical paths forward, but they require time and a legal professional. A homestead defect discovered before the listing agreement is signed is a hurdle. One discovered a week prior to closing is a catastrophe. But there are clues to watch for:

• Deceased owner survived by a spouse or minor children
• Title passed through probate without a court order specifically addressing homestead
• Blended family situations with property from a prior marriage
• Lady Bird deeds or trust-held property where the owner was married at death
• Any separated-but-not-divorced situation

If you spot any of these, don’t wait for the title search. Encourage the seller to loop in an attorney early in the process, so the Actuallys can be handled now, and you can handle a “Sold” sign later.

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1. Homestead in Florida is three distinct legal concepts: property tax exemption, creditor protection, and the topic of this article: descent and devise restrictions. ↩︎