Florida Homestead Law
Florida Homestead Law
Every Florida resident is entitled to have his interest in the real property on which he resides (his “homestead”) exempt from forced sale for collection of money judgments. After the owner’s death, this exemption inures to his surviving spouse and/or heirs at law who inherit the homestead.
In addition, an attempt by a deceased owner to devise his homestead property by will is void if he is survived by either a surviving spouse or a minor child. (Exception: A devise of the fee simple title to the surviving spouse is valid if there is no child that is a minor.)
Florida homestead law complicates real estate titles and conveyances, the descent and distribution of decedents’ estates, and the collection of money judgments. In addition, it is often confused with the homestead exemption from real property taxes.
Any attempt by a living homestead owner who is married to deed or to mortgage the homestead without the joinder of his spouse is void. A money judgment against the owner of a homestead cannot be a lien on the homestead. To have marketable title to the property free of the lien of a properly recorded money judgment, however, an owner must establish the property’s homestead status judicially.
If not validly devised by will, the homestead passes upon the death of its owner outside the powers of the personal representative in the probate proceeding directly to the surviving spouse, if any, for life with a vested remainder to the decedent’s lineal descendants per stirpes. If there is no surviving spouse and the homestead is not validly devised, the title passes by normal Florida intestacy to the heirs at law but outside the powers of the personal representative to sell. If there is no lineal descendant surviving, the title passes to the surviving spouse under intestacy rules.
Homestead property can be validly devised by will only if the decent had neither a spouse nor a minor child at the time of his death.
If the homestead is validly devised to someone who is not a relative within the class of potential heirs at law (in other words, not one that could have inherited the devised interest by intestacy if all older generation heirs at law had predeceased) then the property loses its homestead status upon the death of the decedent and therefore is an asset in the probate estate subject to possible sale to pay the costs of administration and creditors’ claims.
If the interest was validly devised to a relative who was potentially an heir at law of the decedent, then the homestead passes directly to that devisee without being subject to the power of the personal representative to sell it to pay claims or costs of administration.
Of course, the probate estate is the proceeding in which the homestead or non-homestead status of the interest is determined. An order determining the homestead status in the probate estate, entered at a hearing after notice to all creditors and other interested persons, may be necessary to establish the exemption from claims of the decedent’s creditors. See Probate.
The homestead property tax exemption has a separate statutory basis. It allows a resident of Florida to exclude from the calculation of his ad valorem real property taxes $25,000 of the assessed value of his principal residence.
This entry was posted on Saturday, October 17th, 2009 at 10:39 am and is filed under Articles. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.
