A homestead purchased to avoid paying a creditor is still protected because: the Florida constitutional exemption of homesteads protects the homestead against every type of claim and judgment except those specifically mentioned in the constitutional provision itself. Chames v. DeMayo involved a creditor (an attorney) seeking fees by placing a lien on the homestead property. | Was decedent survived by a minor child? This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004. Therefore, a purported waiver of homestead rights contained in an unsecured agreement is not enforceable under Florida law. Surviving Spouse Tenant in Common (TIC) Election. X, § 4, Fla. One of the more frequently encountered areas of confusion in Florida Probate and real property disputes revolves around Florida’s state constitutional protections for homestead property. In the absence of a right to partition the property, the aforementioned circumstance would invariably result in a race to take possession of the decedent’s homestead. Fla. Stat. The public policy furthered by a homestead exemption is to: [P]romote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune and the demands of creditors who have given credit under such law. Importantly, this statute does not alter the status of the property—it is still non-probate homestead—it merely outlines what the personal representative can do during the administration process. The Lady Bird Deed is an enhanced version of the life estate. A dispute ensued between the surviving spouse, the decedent’s children, and trustee over how to administer the trust and the homestead property. A will provision devising Florida homestead property is valid ONLY if BOTH elements of the following two-part test are satisfied: The homestead was subject to devise. This amendment modified Article X, Section 4 of the Florida Constitution to clarify language allowing for the willing of property to a spouse if there is no minor child. Can Florida Homestead Property Be Held in a Revocable Trust? At the time of his death, the property was his homestead property. These three different homestead protections are discussed at length below, and are set forth in Article X, Section 4 of the Florida Constitution, which states: (a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person: (1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family; (2) personal property to the value of one thousand dollars. For this analysis, we need to look at the Florida Constitution. 2d 850, 861-862, 2007 Fla. LEXIS 2393, *33, 32 Fla. L. Weekly S 820. if(document.getElementsByClassName("reference").length==0) if(document.getElementById('Footnotes')!==null) document.getElementById('Footnotes').parentNode.style.display = 'none'; Florida elections in 2020 | 2d 767, 767 (Fla. 1st DCA 1987), the court confirmed that where a testator directs the sale of homestead property and distribution of the proceeds, the proceeds lose their homestead character and become part of the estate subject to administrative costs and creditors’ claims.”, Estate of Shefner v. Shefner-Holden, 2 So. The rules regarding homestead property set forth under both the Florida Constitution and the Florida Statutes permeate multiple facets of the practice of law in Florida. “Homestead property, whether devised or not, passes outside of the probate estate.”. A surviving spouse and minor children will always inherit the Florida homestead property, regardless of what the will says. Section 733.617, Fla. Stat. (2000) (involving intestate estates); § 732.514, Fla. Stat. homestead . 3. 3d 1076 (Fla. 3d DCA 2009) (homestead is not a part of the probate estate), “[W]hen devised to a qualified heir, decedent’s homestead property is not distributed as part of the decedent’s estate, and passes directly to the designated heir.”, Havoco of Am. Florida law prohibits the devise of a homestead if the owner is survived by a minor child or children. The surcharge proceeding against Monks may have been entirely appropriate, and certainly Monks will be personally liable for the judgment against her. Redistricting, List of Florida ballot measures | Id. Judicial Selection | The Florida constitution Article 10, section 4 of the Florida constitution provides: SECTION 4. The wife joined in the deed (which is required to covey homestead property in Florida). Was decedent survived by heirs? Prior to the enactment of the revised Florida Homestead statute, if the Homestead was not devised in a way that was permitted by Florida law, the surviving spouse automatically received a life estate in the Homestead property and any minor children received a vested remainder in the property. (c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. This webiste constitutes attorney advertising. The husband did not survive the term of the QPRT, which causes the property to revert back to the husband’s estate. Simply, the rules of homestead are always there and always considered. If a debtor in bankruptcy does not meet the 40-month Florida residency requirement the homestead exemption is capped. The foundation of the Florida homestead exemption starts with the Florida Constitution (Here). at 377-78). 732.4015 do NOT apply. Section 732.2045(1)(i) governs exclusions and states: (i) Property which constitutes the protected homestead of the decedent if the surviving spouse validly waived his or her homestead rights as provided under s. 732.702, or otherwise under applicable law, and such spouse did not receive any interest in the protected homestead upon the decedent’s death. The former-wife moved in and claimed the home as her homestead. As we noted in Carter, “the very nature of the transaction implies the exercise of discretion and the contemplation of inevitable consequences.” Carter, 20 Fla. at 570. The devise in the instant case is silent on the fund from which it is to be realized. What is The Deadline To Challenge Will in Florida Probate? “[h]omestead interests should be protected from forced sale wherever possible, but not at the expense of others owning interests in the property.” Wescott, 487 So. (personal representative commission) and § 733.6171, Fla. Stat. The notice is required to contain: In Herrilka v. Yates, a probate court’s order awarding a lien on the protected homestead was reversed. 2d 341 (Fla. 2005) (if homestead not specifically devised it goes to the residuary devisees) (only when the testator specifies in the will that the homestead is to be sold and proceeds divided does homestead lose protected status), “[W]here a decedent is not survived by a spouse or minor children, the decedent’s homestead property passes to the residuary devisees, not the general devisees, unless there is a specific testamentary disposition ordering the property to be sold and the proceeds made a part of the general estate.”, Monks v. Smith, 609 So.2d 740 (Fla. 1st DCA 1992) (Equitable principles cannot be used to deny homestead status), “However, “the homestead protection has never been based upon principles of equity.” Public Health Trust of Dade County v. Lopez, 531 So. 2d 192 (Fla. 5th DCA 1989) (personal representatives have no jurisdiction over homestead) (no homestead order is required to pass title to homestead), “Homestead property, whether devised or not, passes outside of the probate estate. R. 5.340. 2d 341 (Fla. 2005). by operation of law, bypassing probate.6 Florida homestead property can be owned as JTROS and TBE, and such ownership does not violate the Florida Constitutional restrictions on devise and decent of homestead property.7 A life estate also avoids probate. At the moment of death, the property passed to its owners: In a twinkle of an eye, as it were, to his wife for life, and thereafter to his surviving sons. Section 732.2055(1). Instead, the Florida homestead protection only applies if a debtor has lived in Florida for at least 40 months. Const. Voting in Florida | Click here to contact us for media inquiries, and please donate here to support our continued expansion. Article X, Section 4 of the Florida Constitution defines “homestead” property. (c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. Public Health Trust v. Lopez, 531 So. If your Florida property is homestead, you are entitled to certain exemptions and protections under the Florida Constitution. 2d 469, 473 (Fla. 3d DCA 1981) (involving remainder interests); Estate of Broome, 375 So. (5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate. Chames v. DeMayo, 972 So. (in Re Estate of Hamel), 821 So. Ballot access for parties | The revocable trust also provided for payments to the surviving spouse of money every year. To read a case study about how homestead, divorce, and surviving spouses intersect, click here. Section 733.608(3) states, in part, that: If the personal representative expends funds or incurs obligations to preserve, maintain, insure, or protect the property referenced in subsection (2), the personal representative shall be entitled to a lien on that property and its revenues to secure repayment of those expenditures and obligations incurred. Yes, the homestead rights and protections can be waived. Further, “[u]nless the waiver provides to the contrary, a waiver of ‘all rights,’ or equivalent language” may constitute a waiver of all homestead rights that would otherwise pass to the waiving spouse by intestate succession. The real winners in some situations will be the surviving spouse’s children from an earlier marriage. (compensation of personal representative). If the surviving spouse takes a life estate, or elects to take a tenant-in-common interest, then the homestead property is valued at one-half of the fair market value on the decedent’s date of death for purposes of the elective estate. According to the Florida Constitution (Art. Section 732.2035 states that: “The decedent’s interest in property which constitutes the protected homestead of the decedent” enters into the elective estate. If the decedent is survived by one or more descendants, the surviving spouse takes a life estate, with the remainder in fee simple to the descendants. The Florida constitution Article 10, section 4 of the Florida constitution provides: SECTION 4. State executives | The homestead is in no wise an asset of the estate of a decedent.” Cavanaugh v. Cavanaugh, 542 So. , 972 So Necessary to File a creditor claim when one spouse Dies Before divorce. Homestead property to themselves, as tenants in common rather than a estate... 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