By Jon Carroll
When one thinks about the benefits of a Florida Homestead, the first thing to come to mind is likely the tax relief associated with homestead property. But Florida’s homestead protections extend beyond this particular benefit. Florida’s homestead protections are among the strongest in the country and play a central role in creditor protection and estate planning for spouses and minor children.
Florida’s modern homestead protections come from both the Florida Constitution and the Florida Statutes. The constitutional provisions are found primarily in Article X, Section 4, which addresses protection from forced sale and restrictions on how homestead property may be devised at death. The probate statutes, found in Chapter 732, expand on how a homestead passes at death and the options a surviving spouse may have.
To qualify as homestead, a property must generally be owned by a natural person and used as the owner’s primary, permanent residence. The protection is not limited by dollar value, but it is restricted by size: up to one-half acre within a municipality, and up to 160 acres outside a municipality. Only one property may qualify as a person’s homestead.
Homestead provides three broad categories of protection. First, qualifying homestead property is generally exempt from forced sale by most unsecured creditors of the owner. With limited exceptions for matters such as mortgages, property taxes, and certain construction liens, a judgment creditor cannot force a sale of the homestead to satisfy a debt. This gives Florida homeowners a powerful shield when they experience financial hardship or unexpected liability.
Second, Florida offers property tax benefits for homestead property. A homeowner can claim a homestead tax exemption that reduces the assessed value of the primary residence for purposes of ad valorem taxes. In addition, the Save Our Homes cap limits annual increases in the assessed value of homestead property. The Save Our Homes cap is designed to help long-time residents keep property taxes more predictable, even when market values rise.
The third major feature of homestead law is its impact on how the home passes at death. Florida imposes limits on how homestead property may be devised when the owner is survived by a spouse or minor children. If the owner dies with a surviving spouse or minor child, the homestead generally cannot be left by will or trust to someone else, even if the estate planning documents attempt to do so. Instead, the law provides a default scheme of descent designed to protect the surviving family.
In many cases, when a homeowner dies leaving a surviving spouse and descendants, the surviving spouse will receive either a life estate in the homestead, with the remainder passing to the decedent’s descendants, or the option to take an undivided one-half interest in the property as a tenant in common with the descendants. If there is a surviving spouse but no minor child, the homestead can usually be left outright to the surviving spouse, but not to a third party unless the spouse has properly waived homestead rights in a written agreement or deed. The underlying purpose of these restrictions is to protect surviving spouses and minor children from being disinherited or displaced from the family home.
Because of these nuances, your homestead property should be considered in every Florida estate plan to ensure your wishes are met.
Jon Carroll is a licensed attorney. The information in this column is provided for educational and informational purposes only, and does not constitute legal advice, nor establish an attorney client relationship. Consult a qualified attorney in your jurisdiction for legal advice specific to your situation.
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