In Re: Amendments to Florida Probate Rule 5.405

Supreme Court of Florida
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No. SC2025-0266
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IN RE: AMENDMENTS TO FLORIDA PROBATE RULE 5.405.

August 28, 2025

PER CURIAM.

The Florida Bar’s Probate Rules Committee proposes

amending Florida Probate Rule 5.405 (Proceedings to Determine

Protected Homestead Status of Real Property).1 Both the Committee

and the Court published the proposal for comment in The Florida

Bar News; no comments were received in response to either

publication. The Florida Bar’s Board of Governors unanimously

recommends acceptance of the proposed amendments.

We adopt the amendments to rule 5.405 as proposed by the

Committee. Subdivision (b)(4) is added to require that a petition to

determine the protected homestead status of real property owned by

1. We have jurisdiction. Art. V. § 2(a), Fla. Const.; see also
Fla. R. Gen. Prac. & Jud. Admin. 2.140(b).
a decedent or trustee of a trust of a deceased settler state “whether

the decedent died testate or intestate.” This change will allow

courts to determine the proper beneficiaries of a decedent’s

homestead. In addition, the remaining numbered paragraphs

under subdivision (b) are renumbered. Lastly, newly renumbered

subdivision (b)(5) is amended to require the petition to include, if

applicable, the method by which the surviving spouse waived

homestead rights. This will provide clarity for both practitioners

and courts regarding the basis of the waiver.

Next, we amend subdivision (d) (Order) to remove references to

“of the decedent” when referring to homestead. That language is

not included in the definition of “protected homestead” in section

731.201(33), Florida Statutes, the general definitions provision in

the Probate Code.

Last, a new revision note is added for these amendments to

detail the adopted changes, and two of the rule references are

reordered to place them in numerical order.

Accordingly, we amend Florida Probate Rule 5.405 as reflected

in the appendix to this opinion. New language is underscored;

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deleted language is stricken through. The amendments shall

become effective on October 1, 2025, at 12:01 a.m.

It is so ordered.

MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, GROSSHANS,
FRANCIS, and SASSO, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THESE AMENDMENTS.

Original Proceeding – Florida Probate Rules

Michael A. Sneeringer, Chair, Probate Rules Committee, Bonita
Springs, Florida, Erin Farrington Finlen, Past Co-Chair, Probate
Rules Committee, Fort Lauderdale, Florida, Zackary T. Zuroweste,
Past Co-Chair, Probate Rules Committee, Clearwater, Florida,
Joshua E. Doyle, Executive Director, The Florida Bar, Tallahassee,
Florida, and Heather Savage Telfer, Staff Liaison, The Florida Bar,
Tallahassee, Florida,

for Petitioner

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APPENDIX

RULE 5.405. PROCEEDINGS TO DETERMINE PROTECTED
HOMESTEAD STATUS OF REAL PROPERTY

(a) [No Change]

(b) Contents. The petition must be verified by the petitioner
and must state:

(1)-(3) [No Change]

(4) whether the decedent died testate or intestate;

(5) whether the decedent was survived by a spouse,
and if so, the name of the decedent’s surviving spouse, and
whether the surviving spouse waived the surviving spouse’s
homestead rights, and if so, the method through which the
surviving spouse waived those rights;

(56) the names of surviving descendants, and a
statement as to whether the decedent had any minor children
as of the date of death, identifying any minor children by name
and year of birth;

(67) a legal description of the property owned by the
decedent on which protected homestead is claimed;

(78) whether the property was the domicile of the
decedent, or if not, whether the property was located within a
municipality and was the domicile of a member of the
decedent’s family;

(89) how the real property was titled at the time of the
decedent’s death; and

(910) any other facts in support of the petition.

(c) [No Change]

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(d) Order. The court’s order on the petition must describe
the real property and determine whether any of the real property
constituted the protected homestead of the decedent. If the court
determines that any of the real property was the protected
homestead of the decedent, the order must identify by name the
person or persons entitled to the protected homestead real property
and define the interest of each.

Committee Notes

This rule establishes the procedure by which the personal
representative or any interested person may petition the court for a
determination that certain real property constituted the decedent’s
protected homestead property, in accordance with article X, section
4 of the Florida Constitution. The jurisdiction of the court to
determine constitutional protected homestead property was
established by In re Noble’s Estate, 73 So. 2d 873 (Fla. 1954).

Rule History

1984-2024 Revision [No Change]

2025 Revision: Amends subdivision (b) to require the petition
to include whether the decedent died testate or intestate and to
detail the method through which the surviving spouse waived
homestead rights, if the surviving spouse waived homestead rights.
Amends subdivision (d) to avoid conflict with section 731.201(33),
Florida Statutes. Committee notes revised.

Constitutional Reference [No Change]

Statutory References [No Change]

Rule References

Fla. Prob. R. 5.020 Pleadings; verification; motions.

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Fla. Prob. R. 5.040 Notice.

Fla. Prob. R. 5.041 Service of pleadings and documents.

Fla. Prob. R. 5.180 Waiver and consent.

Fla. Prob. R. 5.205(a)(6) Filing evidence of death.

Fla. Prob. R. 5.340 Inventory.

Fla. Prob. R. 5.404 Notice of taking possession of protected
homestead.

Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.

Fla. R. Gen. Prac. & Jud. Admin. 2.425 Minimization of the
Ffiling of Ssensitive Iinformation.

Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.

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