The Florida Constitution prohibits the devise of homestead property if the owner is survived by a spouse or minor child. Although the purpose of this constitutional restriction is to protect the family, it is often inconsistent with that person's wishes. The Florida Constitution's restrictions can be simply stated as three rules: (1) If the homestead owner is survived by a child under the age of 18, the homestead property may never be devised; (2) If the homestead owner his survived by their spouse but no minor children, the homestead property may only be devised to the surviving spouse; and (3) If the homestead owner is not survived by their spouse nor a minor child, only then are they free to devise the homestead property any way they wish.

If the homestead owner is married and doesn't follow these rules, the surviving spouse receives a life estate in the homestead property and the homestead owner's lineal descendants receive ownership subject to the life estate.

One of the ways around the Constitutional restriction on devising homestead property is for those rights to be waived in a prenuptial agreement. This written waiver permits homestead property to pass under the provisions of a person's will.