If you are like most homeowners in Florida, your home is, if not your largest asset, certainly an important part of your overall estate. Learning how to use Florida’s Homestead Laws to protect and transfer your home are essential. Florida law provides some protections for your home from the claims of creditors. As long as your home falls under the definition of a “homestead” in Florida, the state constitution says it is exempt from certain judgment creditors’ forced sales. From an estate planning standpoint, having this protection from creditors can be comforting.
It’s important to understand when property qualifies, when the exemption does not apply, and how homestead property passes at the owner’s death.
How Does Property Qualify for the Homestead Exemption?
There are some limitations to what is protected. Property will generally qualify as homestead property if it meets one of the following definitions:
- 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; or
- 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.
Homestead property does not need to be single-family; manufactured homes, condominiums, and mobile homes may qualify. However, the owner must be a Florida resident and a natural person (including a revocable living trust or a land trust) and must use the property as his or her primary residence. The property you own but rent out to someone else will not qualify. Similarly, vacation property will only qualify if it is your personal and primary residence.
Understanding When Homestead Protection is in Effect
The property owner’s intent is an essential element in determining whether homestead protection applies. If you begin occupying a Florida residence and intend to make it your permanent Florida residence, you have protection under the homestead law. Unlike in some other states, applying for homestead creditor protection treatment for your property is not required. However, you can file a document in your county called a “Declaration of Domicile.”
Property owners must file paperwork with the county where the property is located to receive homestead tax exemption treatment.
Homestead and Creditors
There are no limits to the amount of equity you can protect from judgment creditors under Florida’s homestead exemption. Regarding bankruptcy, a person or couple filing for bankruptcy can exempt an unlimited amount of equity in their home as long as they owned the property for at least 1,215 days before filing for bankruptcy.
What the Homestead Exemption Will Not Do
Of course, there are some caveats and limits to what you may use the homestead exemption for. While the law provides protections from forced sales to pay off creditors, it does not offer protection from any of the following types of claims or obligations:
- Outstanding mortgage loans on the property
- Tax liens for unpaid federal, state, or local tax obligations
- Mechanic’s liens for unpaid labor and/or materials contractors used to improve your property
- Liens related to homeowners’ or condo owners’ association dues
- Civil judgments in the same county as your homestead, recorded before you began occupying the homestead property
Treatment of Homestead Property after the Owner’s Death
Florida laws are designed to protect a surviving spouse from becoming impoverished by a spouse. Suppose one spouse who owned homestead property in their name alone dies. In that case, the surviving spouse receives a life estate on the property, with the remainder interest going to the original owner’s children, if applicable. The title would pass to the surviving spouse if the decedent were married without children or descendants.
When the decedent leaves both children and a surviving spouse, the surviving spouse can, within six months from the original owner’s death, elect to take a one-half interest in the property immediately, with the other half being owned by the deceased owner’s children. These rights apply regardless of what the decedent’s Will says unless the surviving spouse has waived their rights to inherit or disclaimed any interest in the homestead property.
The Florida Constitution says homestead property cannot be devised by will or trust except to the property owner’s spouse and/or to their children if there is no surviving spouse. In the case of a single property owner without minor children, the property owner can freely devise the homestead property.
Understand How the Florida Homestead Law May Affect Your Estate
If you are a Florida resident and own real estate, the homestead laws may offer important protections and potential limitations on your property. To learn more, consult with an experienced Jacksonville, Florida, estate planning and probate attorney. Call Forefront Law in Jacksonville today at (904) 733-9080 to schedule an initial consultation.