The Homestead Laws in Florida are a source of confusion for many people; my clients call me with questions all the time. First of all, in order to qualify as your Florida homestead, you and your home must meet three criteria:
- You must have legal or beneficial title to the home on January 1.
- You must reside at the home as your permanent residence.
- You must apply for the homestead exemption in person at the property appraiser’s office in the county where your home is located between January 1 and March 1 of the year in which you are seeking the homestead exemption.
Once your property receives homestead status, this status will generally stay in place until you inform the property appraiser’s office that the property is no longer your Florida homestead.
Assuming that your property meets all three of the criteria listed above, then in order to understand the laws that govern your Florida homestead, you need to know in what context the homestead is being discussed – in relation to:
- Real estate taxes;
- Creditor protection; or
- Death and distribution.
Homestead in Relation to Real Estate Taxes
Your Florida homestead will be entitled to receive certain exemptions from real estate taxes. Refer to the Florida Department of Revenue’s website for a complete list of available exemptions. In addition, Florida’s “Save Our Homes” cap on assessments provides that the annual valuation of your homestead for property tax purposes can only increase by the lesser of 3% or the percentage change in the Consumer Price Index for the prior year. This will generally lead to significant savings on your real estate taxes the more years that you own your homestead property.
Homestead in Relation to Creditor Protection
If someone sues you and obtains a judgment against you, then Florida law provides that the judgment holder cannot force you to sell your homestead in order to pay off the judgment. This protection from judgment creditors will also carry over to certain heirs who inherit your homestead after you die, including your spouse, children, siblings, and nieces and nephews. Nonetheless, any judgments specific to the property, such as foreclosures, past due association fees, and contractors’ liens, will trump homestead protection.
Homestead in Relation to Death, Descent and Distribution
The third, and probably most confusing, concept that you need to understand with regard to your Florida homestead is the restrictions that Florida law places on who you can, and cannot, leave your Florida homestead to after you die. This will depend on whether or not you were married at the time of your death and whether or not you were survived by minor children.
Not survived by a spouse or any minor children. Let’s take the easy situation first – if you own a Florida homestead residence and you are not survived by a spouse or any minor children, then you can leave the homestead to whomever you want. This means that you can disinherit one child in favor of your other children, or disinherit your children in favor of a sibling or a friend.
Survived by a minor child. What happens if you are survived by a minor child? If you are married and your homestead is titled in joint names with your spouse, then that’s OK, you can leave your protected homestead to your spouse through rights of survivorship. But what if you are a single parent and the homestead is titled in your sole name? Then, at least up until October 1, 2010, your homestead had to pass equally to all of your children and minor guardianships had to be established for any of your children who were under the age of 18 at the time of your death. On October 1, 2010, a new law went into effect that allows a single parent of a minor child to establish a special type of irrevocable trust for the minor child’s benefit until an age selected by the parent. This will prevent the need to set up a minor guardianship and give the parent control over when and how the child will inherit the homestead, but, as mentioned above, this special type of trust must be irrevocable and should only be established with the assistance of an estate planning attorney.
Survived by a spouse. What happens if you are survived by a spouse? Then, at least up until October 1, 2010, if you did not leave your homestead to your spouse outright and without any strings attached, then your spouse would receive what is referred to as a “life estate” in the homestead and your children would receive the remainder in equal shares after your spouse dies.
Receiving a life estate in the property means that while the surviving spouse has the right to live in the property for his or her remaining lifetime, it also means that the surviving spouse has to pay all of the property taxes and insurance to maintain the residence. In addition, the surviving spouse cannot force the children to sell the property, and the children cannot force the spouse to sell the property. Today there are two ways around this strict rule:
- You and your spouse can enter into a prenuptial agreement or postnuptial agreement where the spouse who does not own the property waives all of his or her rights to the protected homestead. This will allow the owner of the homestead to leave the property to whomever he or she wants.
- Effective October 1, 2010, the surviving spouse who is initially stuck with a life estate in the homestead can elect within a limited amount of time after the deceased spouse’s death to divide the property so that the spouse will receive one-half and the children of the deceased spouse will equally divide the other half.
As you can see, Florida homestead laws are tricky. If you have minor children or are considering making your second home in Florida your primary, permanent residence, then sit down with a Florida estate planning attorney to insure that you have looked at all three aspects of the Florida homestead laws and planned appropriately.
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