The Three Types Of Homestead in Florida: Type 1 — “Descent and Distribution” of your Property upon Death
If you live in Florida and own your own home, you have probably heard of the term "Homestead." Most people in Florida think of Homestead in terms of their real property taxes — both in the exemption from taxes that they receive, and the amount by which their taxes can be raised each year. In fact, there are three different uses of the term Homestead in Florida. One is the familiar property tax exemption; one is the protection of your Homestead from creditors, and one is what is known among attorneys as "devise and descent," that is rules strictly governing the disposition of your Homestead property upon your death.
In this, the first of three blog posts introducing the three types of Homestead, I will discuss the rules concerning who you may, and who you may not, leave your Homestead to in the event of your death.
First though, what, in Florida, is a "Homestead?" A recent court case stated that "It has been said by those who labor in the area, that ‘the leading cause of cerebral herniation among probate lawyers, real estate lawyers, circuit court judges sitting in probate, and appellate judges reviewing their work is the study of the legal chameleon also known as homestead." Cutler v. Cutler, 2007 WL 601866. In other words, there is no clear answer.
Article X, Section 4 of the Florida Constitution states, in relevant part:
SECTION 4. Homestead; exemptions.–
- There shall be exempt from forced sale. . . the following property owned by a natural person:
- 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. . .
- 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. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.
Other than the fact that your Homestead can be up to 160 acres if it is located outside a municipality and up to one half an acre inside a municipality, there is no real Constitutional or Statutory definition of Homestead. But if you are a full time Florida resident who owns and lives full time in their own house, condominium, and in some cases, mobile home, you have a Homestead. (I’ll leave the discussion of part time Florida residents a/k/a Snowbirds and Houseboats for another day).
In simplified terms, Florida law involving the disposition of your Homestead upon your death is as follows:
- If you are not married, and have no minor children, then you are free to devise your Homestead to whomever you want.
- If you are married and have no minor children, meaning you only have children that have reached the age of majority, or you have no children at all, you may only devise your Homestead to your spouse (and it must be a devise of the entire Homestead. A life estate is not permissible).
- If you have minor children, whether or not you are married, your Homestead is not subject to devise. That means you have no say in the matter as to what happens to it after your death.
(For a far more detailed explanation, see Florida Attorney Rohan Kelley’s chart, which is posted at Juan C. Antunez’s Florida Probate and Trust Litigation Blog).
In each case above in which the Homestead was not properly devised, or not subject to devise, the law provides that the following happens: Your surviving spouse (if you have one) receives a life estate in the Homestead, with the remainder going to your “lineal descendants in being,” both minor children and adult children. Your spouse gets to live in the home for the rest of their lives, and has to pay most of the costs involved in maintaining the Homestead (as set forth in the Florida Principal and Income Act). Your “lineal descendants” have a vested remainder interest in the Homestead, meaning they inherit the home upon your spouse’s death.
If this is not what you wanted, there is usually nothing that can be done after your death. However, there are ways to plan around this while you are still alive, including a properly drafted pre (or post) nuptial agreement or owning the property with your jointly with your spouse.
Far too often people from other states move to Florida and are told by their prior attorneys that their wills are “still valid,” and thus, are never updated. While it is generally true that a will drafted in New York is valid when you move to Florida, an out of state will likely does not properly deal with the unique issue of the disposition of Florida Homestead upon your death.
The key here is to emphasize that Florida Homeowners must engage in proper planning with an attorney licensed to practice in Florida who understands the intricacies of Florida Homestead. Otherwise, they risk having the ownership of their most important asset, their home being decided by the law, and possibly causing untold discord amongst their loved ones after their death.