How Florida’s Homestead Exemption May Restrict Your Estate Planning Options

Normally, a Florida resident is free to devise their property as they wish through their will or by creating a revocable trust. But there is an exception for married persons who own their primary residence. Such residences, known as “homesteads,” enjoy a special status under the Florida Constitution.

Florida Law and Your Primary Residence

Article X, Section 4, of the state Constitution exempts a person’s homestead from “forced sale” to satisfy any creditor claims. In other words, if you owe someone money, they cannot seize your primary residence to pay that debt. Unlike many states, Florida’s homestead exemption is not limited to a certain amount of equity in your home. Instead, the exemption applies to the full value of any property of up to one-half acre in a Florida municipality or 160 acres outside of a municipality.

Section 4 also restricts a homestead owner’s ability to devise their residence if they are survived by a spouse or minor child. Essentially, you cannot use your will (or trust) to deprive your spouse or minor child of the right to continue living in your primary residence after your death. Section 732.401 of the Florida Statutes spells this out in more detail. Under the statute, your spouse automatically receives a “life estate” in the homestead after you die, with your children (or other descendants) receiving the property after your spouse dies or chooses to leave the property.

Keep in mind, this restriction only applies to your primary residence. If you and your spouse own a second home or rental property, in Florida or anywhere else, there is no constitutional or statutory restriction on your right to devise your ownership interest in such a property through your will.

Can Your Spouse Waive Their Homestead Rights?

This is a question our office often gets with respect to the homestead exemption. The short answer is yes, a spouse can waive their rights to a life estate under the homestead exemption. For example, many couples sign a prenuptial or postnuptial agreement that includes such a waiver. In order for such a waiver to be valid, however, it must be explicit and contain certain language. A general waiver of “all interests” in a spouse’s probate estate is insufficient. Nor does signing a deed granting one spouse 100 percent ownership of the homestead property.

That said, Section 732.401 does provide another option. Upon the death of a homestead owner, the surviving spouse may elect to take an undivided one-half interest in the property as a “tenant in common.” In practical terms, this means the surviving spouse would own 50 percent of the primary residence, with the deceased spouse’s descendants receiving the other 50 percent. The surviving spouse must make this election within 6 months after the other spouse’s death. Once a spouse makes such an election, however, that decision is irrevocable.

Contact a St. Petersburg Asset Protection Lawyer Today

Your home is just one of many assets you need to safeguard as part of the estate planning process. Our St. Petersburg asset protection lawyer can advise you on the best strategies for your family and property. Contact Drude Tomori Law today at 727-300-8900 or contact us online to schedule a consultation. We serve clients in St. Petersburg, Lakewood Ranch, Bradenton, and Sarasota.

Sources:

leg.state.fl.us/statutes/index.cfm?submenu=3#A10S04

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799%2F0732%2FSections%2F0732.401.html