In Re: Amendments to Florida Probate Rule 5.405

• Court: Supreme Court of Florida
• Decided: August 28, 2025
• Docket: SC2025-0266
• Status: Published

Opinion

Supreme Court of Florida ____________

No. SC2025-0266 ____________

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;

-2- 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

-3- 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]

-4- (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.

-5- 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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