At Lumsden Law, we regularly help Florida families navigate the complexities of estate administration, especially when it comes to protecting one of the most valuable assets: the family home. 

One question that often comes up during probate or estate planning is this: “What happens to someone’s homestead property if they move into assisted living or a skilled nursing facility?” 

It’s a valid concern, and the answer may surprise you. Under Florida law, a property can still retain its homestead status even if the owner no longer physically resides there, as long as they have the intent to return. In this article, we’ll break down what this means for your loved ones, your family home, and your estate plan. 

Homestead Property in Florida: Why It Matters 

In Florida, homestead property enjoys unique legal protections. These include: 

• Exemption from forced sale by most creditors 

• Reduced property taxes 

• Protections for surviving spouses and minor children 

• Special distribution rules in probate 

Because of these powerful benefits, determining whether a property qualifies as a “homestead” is essential in estate planning and administration. 

What Happens to Homestead Status if Someone Moves to Assisted Living? 

It’s a common situation: A Florida resident enters a long-term care facility, such as assisted living or skilled nursing. They no longer physically occupy their primary residence, but they haven’t sold it either. 

Here’s what Florida law says: 

As long as the individual keeps the home and maintains the intent to return, even if physically or mentally they never will the home still qualifies as homestead property. 

This is true even if the person is legally incapacitated or medically incapable of returning home. 

Understanding “Intent to Return” 

Florida courts have consistently held that intent to return is the key to maintaining homestead status. This intent doesn’t have to be realistic or even physically possible. It simply must exist. 

For example: 

• A person in memory care may no longer recognize their home, but if their estate plan or prior actions indicate an intention to return home, the property keeps its homestead classification. 

• If they never declared the home for rent, didn’t transfer the title, and consistently maintained the property, this further supports their intent. 

In these cases, the homestead is preserved in the probate estate and passed according to Florida’s homestead distribution laws. 

How This Affects Probate and Estate Administration 

If the individual passes away while still owning the property—and the home retains its homestead status—this has significant consequences for their estate: 

1. Exemption from Creditor Claims 

Under probate in Florida, a homestead is typically excluded from the estate assets used to pay unsecured debts like credit cards or personal loans. This legal protection ensures the home cannot be forced to sell to satisfy creditors—offering valuable security to surviving heirs.

2. Special Distribution Rules 

Under Florida law, homestead property cannot be left in a will in a way that disinherits a surviving spouse or minor children. If the decedent tried to do so, the law overrides those terms. 

If there’s no spouse or minor child, the property can pass to other heirs as directed by the will or via Florida’s intestate succession rules (if there is no will). 

3. Avoiding Medicaid Estate Recovery 

In Florida, homestead property is generally not subject to Medicaid estate recovery—another reason why retaining homestead status is so crucial for individuals who’ve used Medicaid for long-term care. 

Real-World Example (No Fake Scenarios) 

Let’s say Jane, an 85-year-old widow, owns a home in Orlando and has lived there for decades. At 83, she moved into skilled nursing care due to dementia and physical frailty. Jane never listed the home for sale or for rent, continued paying the property taxes, and kept her voter registration and driver’s license at the home address. 

Although Jane never physically returned home, her actions—and perhaps her written statements in a trust or advance directive—indicated a clear intent to return. 

When Jane passes away, her home retains its Florida homestead status, even though she hadn’t lived there for two years. 

Why Families Shouldn’t Sell the Home Too Quickly 

Many adult children or caregivers rush to sell a parent’s home after moving them into assisted living. While sometimes necessary, doing so can jeopardize homestead protection and trigger: 

• Capital gains taxes 

• Loss of Medicaid eligibility (depending on how the proceeds are handled) 

• Exposure to creditor claims during probate 

Before making any decisions, speak with an estate planning or probate attorney who understands Florida homestead laws inside and out. 

The Role of a Probate Attorney in These Situations 

At Lumsden Law, we guide families through sensitive and complex probate situations like these. We help ensure: 

• The homestead is properly preserved in probate 

• Creditors are notified and addressed legally 

• The property is distributed to heirs in compliance with Florida statutes 

• Surviving spouses or family members are not disinherited by mistake 

We also assist with any homestead-related affidavits, court filings, and documentation required to assert or defend the homestead classification in court. 

Frequently Asked Questions :

1. Can my parents’ house still be homestead if they’re in assisted living? 

Yes, if they retained the intent to return home and did not abandon the property. 

2. What if the house was left vacant for years? 

Vacancy alone does not destroy homestead status. It depends on whether there was intent to return and if the home was treated as the primary residence in documents, taxes, and official records. 

3. Can Medicaid take the home after death? 

In most Florida cases, no. Homestead property is protected from Medicaid estate recovery. But consult an attorney to confirm your situation. 

Final Thoughts: Don’t Assume

The law is nuanced, and your family’s specific facts matter. The intent to return home is a powerful legal standard, but it must be supported with clear documentation, consistent behavior, and smart estate planning. It’s also essential to create a will in Florida that aligns with these protections and secures your wishes.

Need help preserving homestead property in Florida? 

Schedule a consultation with Lumsden Law today at Whether you’re managing probate or planning ahead, our experienced legal team can help you protect what matters most—your family, your home, and your legacy.