Life Changes
Losing a spouse is devastating, and navigating the legal process of selling your shared home adds complexity during an already difficult time. Florida has specific rules about property ownership and title transfer that determine how you can sell.
In Florida, when a married couple purchases a home, the default form of ownership is tenancy by the entireties. This form of ownership treats the married couple as a single legal entity rather than two separate owners. The key feature of tenancy by the entireties is the automatic right of survivorship - when one spouse dies, full ownership passes automatically to the surviving spouse without probate.
If your home was held as tenancy by the entireties (which is the case for most married couples in Florida), you already have full ownership of the property upon your spouse's death. You do not need probate court approval to sell. You do not need to retitle the property in your name alone. The title company will process the sale using your spouse's death certificate to confirm that you are the sole surviving owner. This is the simplest and most common scenario for selling a marital home after a spouse's death in Florida.
To confirm your ownership type, check the deed that was recorded when you purchased or last refinanced the home. The deed will state the form of ownership - tenancy by the entireties, joint tenants with right of survivorship, tenants in common, or sole ownership. Your county's clerk of court website typically allows you to search and view recorded deeds online. If you cannot locate the deed, a title company can research the chain of title for you.
Florida recognizes the enhanced life estate deed, commonly called a lady bird deed. This estate planning tool allows the property owner to retain full control of the property during their lifetime (including the right to sell, mortgage, or lease without the remainderman's consent) while automatically transferring ownership to named beneficiaries upon death without probate.
If your deceased spouse had a lady bird deed naming you as the remainderman (beneficiary), the property passes to you automatically upon their death. You establish your ownership by recording the death certificate with the county clerk and, in some cases, filing a new deed in your name. No probate is required. You can then sell the property as the sole owner.
If both spouses are on a lady bird deed as life estate holders with children or others named as remaindermen, the surviving spouse retains the life estate and full control of the property. You can sell the property without the remaindermen's consent because the enhanced life estate preserves your right to sell during your lifetime. The remaindermen's interest only vests upon the death of the last life estate holder.
Probate is required when the property was held solely in the deceased spouse's name without any survivorship provision or trust. This is less common for marital homes but does occur, particularly in second marriages where the deceased spouse owned the property before the marriage and never added the surviving spouse to the title.
Probate is also required when the property was held as tenants in common (rather than tenancy by the entireties or joint tenants with right of survivorship). In a tenants-in-common arrangement, each spouse owns a separate share of the property. The deceased spouse's share must pass through probate or a trust before it can be transferred to the surviving spouse or other beneficiaries.
Florida's homestead protection (Article X, Section 4 of the Florida Constitution) adds complexity. If the decedent was married and the property was their homestead, they cannot devise (leave by will) the property to anyone other than the surviving spouse unless the surviving spouse waives their homestead rights. The surviving spouse has the option of taking a life estate in the property (with the remainder going to the decedent's descendants) or taking an undivided one-half interest as tenant in common with the descendants. These protections apply even when the decedent's will says otherwise.
If probate is required, the timeline for selling depends on the type of administration. Summary administration (for estates under $75,000 or where the decedent has been dead more than two years) can be completed in 2-4 weeks. Formal administration takes a minimum of 3 months and commonly 6-12 months. During this time, carrying costs on the property continue to accrue.
For tenancy by the entireties or joint tenancy with right of survivorship, the title transfer process is straightforward. When you sell the property, the title company will require a certified copy of the death certificate and the existing deed showing the joint ownership. The title company handles the paperwork to transfer clear title to the buyer. You sign the deed and closing documents as the surviving owner. The entire process adds no significant time or cost to a normal closing.
For properties that require probate, the title transfer is handled through the probate process. The Personal Representative (executor) signs the deed on behalf of the estate. The title company requires Letters of Administration from the probate court, the death certificate, and in some cases court approval of the sale. This process adds 1-4 weeks to the closing timeline beyond the standard probate duration.
Title insurance is essential in any post-death sale. The title insurance company examines the chain of title, confirms the surviving spouse's legal authority to sell, checks for liens and encumbrances, and ensures that the buyer receives clear title. Title insurance protects both the buyer and their lender against any future claims that might arise from the ownership transfer. In Florida, the seller typically pays for the owner's title insurance policy (except in some counties where the buyer pays).
The surviving spouse receives a significant tax benefit through the stepped-up basis. When a spouse dies, the deceased spouse's share of the property receives a new cost basis equal to the fair market value at the date of death. For tenancy by the entireties, half of the property gets a stepped-up basis. This can significantly reduce or eliminate capital gains tax when you sell.
Example: You and your spouse purchased a home for $150,000 in 2005. Your spouse passes when the home is worth $400,000. Your basis steps up to $275,000 (your original $75,000 half plus the stepped-up $200,000 for your spouse's half). If you sell for $400,000, your gain is only $125,000 - well within the $250,000 individual primary residence exclusion. You owe zero capital gains tax.
The homestead exemption continues for the surviving spouse without interruption. You do not need to refile. The Save Our Homes cap continues to protect your assessed value. If you sell and purchase a new Florida home, you can port your SOH benefit to the new property through portability.
Many surviving spouses choose to sell within 1-2 years of their spouse's death. Common reasons include the home being too large, too expensive to maintain on a single income, too full of memories, or located far from family support. Whatever your reason, the selling process is the same as any Florida home sale once your legal authority to sell is established.
If the property needs repairs or updates that you cannot or do not want to manage, selling to a cash buyer provides a simple path forward. Cash buyers purchase properties in any condition, close in 7-21 days, and eliminate the stress of preparing a home for market during a difficult period. There are no agent commissions, no repair requirements, and no open houses to endure.
For surviving spouses managing from out of state (common when the Florida property was a retirement or snowbird home), a cash sale can be managed entirely remotely. You provide property information, the buyer evaluates and makes an offer, and closing is handled through a title company with documents sent for remote signing. You never need to travel to Florida to complete the sale.
Usually no. If the property was held as tenancy by the entireties (the default for married couples), ownership passes automatically to the surviving spouse. Probate is only required when the property was in the deceased spouse's name alone or held as tenants in common.
There is no legal waiting period. You can sell as soon as you have legal authority. Many surviving spouses sell within 6-18 months. For tenancy by entireties, you can list immediately with a death certificate.
Likely no. The stepped-up basis at death plus the $250,000 individual primary residence exclusion typically eliminates any capital gains tax. Consult a tax professional for your specific situation.