Homestead Rights

Protecting the family home is a value deeply entrenched in Florida law. Rights of surviving spouses especially are deemed key, and provisions to this end are found in both Florida statutes and the Florida constitution. The question of “Who gets the house?” when a loved one dies can be a source of deep division within families.

As the Fort Lauderdale probate litigation attorneys at The Ansara Law Firm can explain, the Florida homestead exemption is a tool used for asset protection. Specifically, homestead rights shields certain property from levy and execution by creditors.

As established by Article X, Section 4 of Florida’s Constitution, a homestead is one’s principal place of residence, up to one-0half acre within a city and 160 contiguous acres outside a city (including lots with separate legal descriptions and tax numbers). For this protection to apply, the homeowner must be a Florida resident and the homestead property the primary place of residence.

As noted in Aronson v. Aronson, (Fla. 3rd DCA 2012) the owner must have made or intended to make the real property in question his or her permanent residence or that of his/ her family.

When this is established, Florida’s homestead rights offer an exemption from forced sale before and at the time of death. Florida laws are among the most far-reaching, as they do not cap the value of certain real property that can be protected from creditors.

However, Florida statute can be a bit confusing when it comes to how Florida homestead laws relate to death, descent and distribution of homesteaded property. It may be helpful to consult an attorney in Fort Lauderdale or the surrounding area to address your questions. Essentially, there are restrictions who you can – and cannot – leave your Florida homestead to when you die. It will depend on whether you were married at the time and whether you were survived by any minor children (under 18).

Specific statutes that deal with device and descent of homestead in Florida are found in F.S. 732.4015 (device) and F.S. 732.401 (descent). These provisions outlined the rights of surviving spouses, children and more when it comes to homesteaded property.

Surviving spouses and children should make themselves aware of restrictions on transfers and devises (gifts), which can be the source of long, drawn-out legal wrangling after the homeowner’s death over who “owns” the home. It’s not uncommon for surviving spouses and/or children to bicker about:

• Was the property decedent’s homestead?
• Did spouse waive his/ her rights?
• Was homestead abandoned?
• Was property properly transferred during life?

Technically, homesteaded property is supposed to pass outside of probate to the appropriate beneficiaries. But there are many issues and disputes that can result in hang-ups resulting in cases dragging on.

During the life of the owner, the homestead exemption is considered a personal privilege, rather than an estate. It must be claimed, and it can also be waived by a spouse, either before or after marriage.

In general, public policy is in favor of preserving a spouse’s right to homestead exempt property when their husband or wife dies, so any agreement that undercuts those rights will be carefully scrutinized. Our Fort Lauderdale lawyers can help you analyze whether an agreement is likely to withstand court scrutiny.

As decided by the Florida Supreme Court in the 1981 case of In re Estate of Finch, when a decedent is survived by a spouse and lineal descendants, the surviving spouse will take a life estate in the homestead, and the vested remainder to the lineal descendants at the time of his/ her death.

As ruled in the 2006 Florida Supreme Court case of Mcenderfer v. Keefe, where a decedent is not survived by a spouse or minor children, the homestead property will pass to residuary devisees, not general devisees. A residuary devisee is one who is named in the will who takes the testator’s property that remain after debts and legacies charged.

Florida homestead laws are sometimes referred to as “the legal chameleon,” meaning it has been altered and updated many times over the years.

One of the more recent changes took place in 2010, when the Legislature passed HB 1237.

Part of that provision amended F.S. 732.4015, clarifying that homestead validly devised (no minor children devises the home to the spouse outright), then a disclaimer of devise by spouse doesn’t cause devise restrictions to be imposed.

Another part of the new law involved the adoption of F.S. 732.4017, dealing with inter vivos (between living people) transfer of homestead property. This permits transfers of homesteads to irrevocable trusts without any of the post-death devise restrictions.

Because homestead law is so complex and constantly evolving, it’s imperative that you contact an experienced probate litigation attorney in Fort Lauderdale for information on how we can help you exercise your homestead rights after the death of a loved one.

Contact the Probate Litigation Lawyers at The Ansara Law Firm at (954) 761-3641 or by email. Serving Broward, Miami-Dade and Palm Beach Counties.