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Homestead Protections for Surviving Spouses and Minor ChildrenHomestead Protections for Surviving Spouses and Minor Children

Homestead Protections for Surviving Spouses and Minor Children

24 May 2018

Florida residents enjoy some of the most robust Homestead Protections in America. Nevertheless, there are several big caveats and conditions with respect to devises, i.e. who you will transfer the property to in your Will.

 

Introduction to Florida Homestead Protections

The Florida Constitution establishes several protections for a property declared as a homestead (primary residence). Homesteads are exempt from the first $25,000 of their value for the purpose of calculating all property taxes, plus another $25,000 in value if the home is worth up to $75,000 except for property taxes used for funding public schools.

 

That means a home worth $100,000 – for the purpose of calculating property taxes – could be considered worth only $75,000, and could be considered worth only $50,000 for all non-school related property taxes. There are several other exemptions available depending on the circumstances, such as for persons with disabilities, veterans, and widows/widowers.

 

Florida homestead protections also extend to creditor claims: if certain requirements are met – such as if the property is owned by a natural person (e.g., not a business entity) who uses the property as their permanent residence – the property cannot be forcibly sold to satisfy a creditor’s claims (the sole exceptions being with respect to taxes, assessments, mortgages, and debts from property improvements).

Given these advantages, it is understandable to arrange for your homestead to transfer to your loved ones when you pass away. Yet that is where things get tricky.

 

Restrictions on the Transfer or Devise of a Florida Homestead Property

Spouses who own a homestead property may transfer their interests in the property only if they both sign the instrument of conveyance, such as the Warranty Deed . You are limited in how you can devise the homestead property depending on who survives you:

 

  1. If you leave behind a spouse and no children, then the only recognized transfer of your homestead will be to your spouse – any other transfer will be invalidated.
  2. If you leave behind a spouse and children under the age of 18, then no transfer of the property is permitted following your death. Instead, your surviving spouse will receive a life estate with the remainder to the minor children per stirpes (i.e. in equal shares). Your spouse will also have the option to take a 50 percent ownership interest in the homestead as tenants in common with the minor children.
  3. If you are survived by your spouse and adult children, then you will similarly be limited to transferring your property only to your spouse. If you devise the homestead to someone else, then your spouse will receive a life estate with the remainder to your adult children. (Alternatively, the spouse will have the same option to own half the interest in the homestead as tenants in common with the adult children.)
  4. Finally, if you leave behind no spouse and only minor children, no transfer will be permitted, and your minor children will receive equal interests in the homestead property as tenants in common.

The only circumstances in which you may freely devise your homestead is if you leave behind only adult children, and you have no spouse or minor children surviving you.

 

Moreover, if you have no spouse or children upon your death, and have made no arrangements to devise your homestead (either via a will, a trust or a deed), then Florida’s intestacy laws take effect, devising your homestead to your next of kin.

 

Marina Title Can Help You Understand Homestead Protections

The conditions and restrictions impacting Florida’s homestead protections will have big implications on your estate plan. Marina Title specializes in a wide range of legal and title matters affecting Florida real estate, including homestead protections. If you need more information or guidance in this critical area, contact our firm at contact (305) 901-5628 or email info@marinatitle.com.

 

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