Florida Homestead is a complex topic with effects of property taxation, creditor rights, and inheritance laws. There has been much litigation in Florida over homestead issues.
- What is Florida Homestead Property?
- What Are The Homestead Protections Under Florida Law?
- What is The Purpose Behind The Homestead Exemptions?
- Tax Benefits of Florida Homestead
- Creditor Protection for Florida Homestead
- Can you purchase a homestead property to avoid creditors?
- Florida Homestead in Bankruptcy
- Who Inherits Florida Homestead
- Who Can Homestead Property Be Devised To With a Will?
- Surviving Spouse Tenant in Common (TIC) Election
- What Happens to the Homestead Protections When an Owner Dies?
- When is Homestead Status Determined Regarding Heirs?
- Can Florida Homestead Property Be Held in a Revocable Trust?
- Is Homestead Property Part of the Probate Estate?
- What is the Authority of a Personal Representative of a Florida Probate Estate Regarding Florida Homestead Property?
- Is Homestead Property Included in the Elective Estate for Determination of Elective Share?
- Is the Value of Protected Homestead Subject to Attorney Percentage Fees?
- Can a Probate Lawyer or Personal Representative Receive Compensation for Working on Homestead Property?
- Personal Representative Lien on Homestead Property
- Petition for Extraordinary Services
- Can the Homestead Property Lose its Protected Status Upon Death?
- Can Homestead Rights Be Waived?
- Can Florida Homestead Can Be Partitioned?
- Key Florida Homestead Cases
What is Florida Homestead Property?
Florida homestead property is real property no greater than one-half acre in a city or 160- acres outside a city, owned by a Florida resident, who must be a natural person or revocable trust (not a corporation or other type of entity). If your Florida property is homestead, you are entitled to certain exemptions and protections under the Florida Constitution.
You can only have one homesteaded real property in the State of Florida.
Florida Resident
You must be a Florida Resident to claim the homestead protections and benefit from the homestead exemptions.
If you spend part of your time in Florida and part in another location, there are several indicia of residency that courts will look at if residency is in dispute. These include where you vote, where you have a driver’s license, where your mail goes, and where you spend most of your time.
Acreage Restrictions
Florida homestead protections only apply to property within certain acreage limitations. If the property is within a municipality, then the homestead exemption applies to:
one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family
If the property is outside of a municipality, then the homestead exemption applies:
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.
Natural Person
For homestead protection, the property must be owned by a natural person or revocable trust, not a corporation or any other entity.
What are the Homestead Protections Under Florida Law?
- Provides homesteads with an exemption from taxes;
- Protects homesteads from forced sale by creditors
- Places certain restrictions on a homestead owner from alienating or devising the homestead
These three different homestead protections are discussed at length below, and are set forth in Article X, Section 4 of the Florida Constitution, which states:
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:
(1) 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; or 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;
(2) personal property to the value of one thousand dollars.
(b) These exemptions shall inure to the surviving spouse or heirs of the owner.
(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.
The Florida Probate Code defines “protected homestead” in Section 731.201(33):
“Protected homestead” means the property described in s. 4(a)(1), Art. X of the State Constitution on which at the death of the owner the exemption inures to the owner’s surviving spouse or heirs under s. 4(b), Art. X of the State Constitution. For purposes of the code, real property owned in tenancy by the entireties or in joint tenancy with rights of survivorship is not protected homestead.
What is the Purpose Behind the Florida Homestead Exemptions?
The public policy furthered by a homestead exemption is to:
[P]romote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune and the demands of creditors who have given credit under such law. Public Health Trust v. Lopez, 531 So. 2d 946, 948 (Fla. 1988).
McKean v. Warburton, 919 So. 2d 341 (Fla. 2005). Homestead protections have been construed liberally by Florida Courts.
Tax Benefits of Florida Homestead
Every Florida homeowner can receive an exemption on their homestead property up to $50,000. To qualify you need to own and occupy your home as a permanent residence. The homestead exemption reduces the assessed value of your property, and therefore reduces the amount of taxes that you pay.
A $25,000 exemption applies to the first $50,000 of your Florida homestead property’s assessed value if you own the property on January 1 of the tax year. Another $25,000 exemption applies if the assessed value is between $50,000 and $75,000.
Creditor Protection for Florida Homestead
The Florida Constitution also protects Florida homestead property from creditors, stating that the Florida homestead:
shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty…
This means that a creditor cannot force the sale of your homestead in order to satisfy a judgment against you. This protection does not apply to creditors associated with your homestead, such as your mortgage company or the contractor that renovated your kitchen.
Can you purchase a homestead to avoid creditors?
Yes, you can purchase a homestead to avoid creditors. As the Florida Supreme Court has stated:
The transfer of nonexempt assets into an exempthomesteadwith the intent to hinder, delay, or defraudcreditorsis not one of the three exceptions to thehomesteadexemption provided in article X, section 4. Nor can we reasonably extend our equitable lien jurisprudence to except such conduct from the exemption’s protection. We have invoked equitable principles to reach beyond the literal language of the excepts only where funds obtained through fraud or egregious conduct were used to invest in, purchase, or improve the homestead.
Havoco of Am. v. Hill, 790 So. 2d 1018, 1028 (Fla. 2001).
A homestead purchased to avoid paying a creditor is still protected because:
the Florida constitutional exemption of homesteads protects the homestead against every type of claim and judgment except those specifically mentioned in the constitutional provision itself.
Olesky v. Nicholas, 82 So. 2d 510, 513 (Fla. 1955).
If the proceeds from fraud or other illegal activity are used to purchase the homestead, the homestead property is not protected from the victim of such fraud.
Under Havoco, equitable principles reach beyond the literal language of the three homestead exceptions outlined in Article X, section 4 of the Florida Constitution “only where funds obtained through fraud or egregious conduct were used to invest in, purchase, or improve the homestead.” 790 So. 2d at 1028. It is well-settled under Florida law that homestead protections “cannot be employed as a shield and defense after fraudulently imposing on others.” Jones v. Carpenter, 106 So. 127, 130 (Fla. 1925). As a result, “[a]n equitable lien may be foreclosed against homestead property purchased with funds obtained by fraud.” Sweeteners Plus, Inc. v. Glob. Supply Source, Inc., No. 6:11-cv-1799-Orl-28DAB, 2013 WL 6890857, at *8 (M.D. Fla. Dec. 31, 2013) (citing Babbit Elecs. v. Dynascan Corp., 915 F. Supp. 335, 338 (S.D. Fla. 1995)).
Renda v. Price, 347 So.3d 3 (4th DCA 2022).
Florida Homestead in Bankruptcy
In bankruptcy, you are not entitled to the unlimited protection against creditors for homesteads. Instead, the Florida homestead protection only applies if a debtor has lived in Florida for at least 40 months. The homestead property must not be larger than a ½ acre in a municipality, and 160 acres outside a municipality.
If a debtor in bankruptcy does not meet the 40-month Florida residency requirement the homestead exemption is capped. The cap per current federal law is $160,375.
Does renting rooms cause homestead to lose its protected status?
No. The renting of rooms in a house to non-relatives does not cancel property that would otherwise be homestead.
Who Inherits Florida Homestead?
A surviving spouse and minor children will always inherit the Florida homestead property, regardless of what the will says. If there are no minor children and no surviving spouse, the Florida homestead can be bequeathed to anyone.
Florida Homestead – No Will, Surviving Spouse, No Minor Children
If there is no will and no minor children, the share of the surviving spouse will depend on whether there are any adult children.
If there are no surviving descendants of the decedent, then the surviving spouse inherits the entire homestead.
If the decedent is survived by one or more descendants, the surviving spouse takes a life estate, with the remainder in fee simple to the descendants. The surviving spouse may elect to take a 1/2 interest as tenant in common rather than a life estate, discussed below.
Florida Homestead – No Will, No Surviving Spouse, Yes Minor Children
If there is no will and no surviving spouse, but decedent was survived by minor children, then the homestead goes in fee simple to the decedent’s descendants in being.
Florida Homestead – No Will, No Surviving Spouse, No Minor Children
If there is no surviving spouse and no minor children, the Florida homestead passes just like any other asset according to Florida’s law of intestacy.
Share of other heirs.—The part of the intestate estate not passing to the surviving spouse under s.732.102, or the entire intestate estate if there is no surviving spouse, descends as follows:
(1) To the descendants of the decedent.
(2) If there is no descendant, to the decedent’s father and mother equally, or to the survivor of them.
(3) If there is none of the foregoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.
(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order:
(a) To the grandfather and grandmother equally, or to the survivor of them.
(b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
(c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
(5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.
(6) If none of the foregoing, and if any of the descendants of the decedent’s great-grandparents were Holocaust victims as defined in s.626.9543(3)(a), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the descendants of the great-grandparents. The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004.
Can a Stepchild Inherit Florida Homestead?
Yes.The Supreme Court of Florida has held that the word “heirs,” when determining entitlement to the homestead protections against creditors, is not limited to only the person or persons who would actually take the homestead by law in intestacy on the death of the decedent. Instead, “the [Florida] Constitution must be construed to mean that a testator . . .may devise the homestead . . .to any of that class of persons categorized in section 732.103.”Snyder v. Davis, 699 So.2d 999, 1000 (Fla. 1997) (emphasis added).
Fla. Stat. 732.103 includes as “heirs” the following persons: descendants of the decedent, decedent’s father or mother, decedent’s brothers or sisters and their descendants, paternal and maternal kindred of the decedent (this includes grandfathers and grandmothers, uncles and aunts and their descendants), and the kindred of the last deceased spouse of the decedent and his or her kindred.
Therefore, even a step-child can inherit protected Homestead.
One example is if a homestead is specifically devised in a will to two children and one step-child, it is possible for all three individuals to receive the protected homestead free of creditor claims, administrative expenses, and no portion of the homestead will be part of the decedent’s estate. The order of intestate succession is not necessarily relevant to the determination of who can be specifically devised protected homestead. However, remember that if there is a surviving spouse or minor child, the devise of the homestead may be restricted.
Who Can Homestead Property Be Devised To With a Will?
As provided in the Florida Constitution, homestead property cannot be freely devised if the owner is survived by a spouse or minor children.
Florida Homestead with Will – Yes Surviving Spouse, No Minor Children
If the decedent is survived by a spouse and no minor children, the surviving spouse must be bequeathed the entire fee simple interest in the property. If not, the bequest is invalid and the homestead passes via intestacy.
Florida Homestead with Will – No Surviving Spouse, Yes Minor Children
Because there are minor children and no surviving spouse, the homestead cannot be devised. Section 732.4015. The homestead will descend to the decedent’s descendants in being.
Florida Homestead with Will – Yes Surviving Spouse, Yes Minor Children
If there is a surviving spouse and minor children, then the homestead cannot be devised. By operation of law the surviving spouse will receive a life estate, with the remainder to descendants in being.
If there is no surviving spouse or minor children, the homestead can be freely devised. If the homestead is devised to persons outside of the class of intestate heirs, the protections will not inure to those devisees.
Surviving Spouse TIC Election
The surviving spouse is permitted, in lieu of a life estate, to elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of decedent’s death. This is called a tenant-in-common election (“TIC Election”). The TIC election must be made within 6 months of the decedent’s death and must be recorded in the official record book of the county where the homestead property is located. Section 732.401.
A one-half tenant in common interest gives the surviving spouse an ownership interest in the homestead, which allows the surviving spouse to bring a partition action to sell the property. If the property is sold, the surviving spouse will generally receive one-half of the proceeds of any sale. Prior to the enactment of the revised Florida Homestead statute, if the Homestead was not devised in a way that was permitted by Florida law, the surviving spouse automatically received a life estate in the Homestead property and any minor children received a vested remainder in the property. The life estate interest could not be partitioned, which required the surviving spouse and children of the deceased to negotiate a sale of the homestead. If there was no agreement, the property could not be sold.
These arcane rules strained many family relationships, especially in second marriages. In these situations, the Florida Principal and Income Act governs the allocation of expenses between the life estate and vested remainder interest. The surviving spouse is generally responsible for any interest payments on the mortgage, property taxes, property insurance and repairs and the children are generally responsible for principal mortgage payments on the residence and any substantial capital expenditures.
To add another complicating factor, if the surviving spouse ever wanted to downsize, the surviving spouse had to negotiate with the children to allow a sale and they would have to determine a value for her life estate. While many see the new statute as a beneficial change, it is also important to note that it is to the detriment of the decedent’s minor children in many cases. A very elderly widow will receive one-half of the Homestead, rather than a life estate which may have zero value. The real winners in some situations will be the surviving spouse’s children from an earlier marriage.
What Happens to the Homestead Protections When an Owner Dies?
When a homestead owner dies, the homestead exemptions and protections inure to those people who are within the class of intestate heirs and are to receive the property upon the owner’s death.
In a testate estate
“Any person to whom homestead property is devised under a will and who is categorized as an “heir” in the intestacy statute, regardless of whether that person would be next in line had the decedent died intestate, receives protected homestead property under the Florida Constitution.” Snyder v. Davis, 699 So. 2d 999 (Fla. 1997).
In an intestate estate, any heir under the intestacy statute receives the benefits of the homestead protections
Therefore, whether by devise or by the laws of descent and distribution, if the homestead property is inherited by someone within the class of intestate heirs, the protections impressed upon that homestead inure to those beneficiaries.
When is Homestead Status Determined Regarding the Heirs?
Homestead status is determined at the death of the decedent. See Wilson v. Fla. Nat’l Bank & Trust Co., 64 So. 2d 309, 313 (Fla. 1953). “[T]he benefits of homestead protections vest in a qualified beneficiary at the moment of a testator’s death…” Cutler v. Cutler, 994 So. 2d 341, 345 (Fla. 3d DCA 2008).
Therefore, if beneficiaries sell the homestead property after the death of the decedent, because the beneficiaries’ homestead rights attached prior to the sale, “the proceeds of that sale are protected from the claims of the decedent’s creditors.” White v. Theodore Parker, P.A. (in Re Estate of Hamel), 821 So. 2d 1276, 1280 (Fla. 2d DCA 2002) (property rights, including homestead, passing by virtue of the death of a person vest at the time of death).
The determination of Florida homestead status at death is such a strong component of homestead law, that even an attempt to reform a trust to make a valid homestead bequest is not permitted.
Can Florida Homestead Property Be Held in a Revocable Trust?
Yes, homestead property held by a revocable trust is treated as if held directly by the grantor of the revocable trust.
Section 732.4015 of the Florida Probate Code provides:
(1) As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or a minor child or minor children, except that the homestead may be devised to the owner’s spouse if there is no minor child or minor children.
(2) For the purposes of subsection (1), the term:
(a) “Owner” includes the grantor of a trust described in s. 733.707(3) that is evidenced by a written instrument which is in existence at the time of the grantor’s death as if the interest held in trust was owned by the grantor.
(b) “Devise” includes a disposition by trust of that portion of the trust estate which, if titled in the name of the grantor of the trust, would be the grantor’s homestead.
In Aronson v. Aronson, 81 So.3d 515 (3rd DCA 2012), the decedent had transferred his property to a revocable trust, and then became a Florida resident. At the time of his death, the property was his homestead property. The revocable trust bequeathed a life estate to the spouse, in trust, with the remainder interest, in trust, to the decedent’s children from an earlier marriage. The revocable trust also provided for payments to the surviving spouse of money every year. The trust held no other assets from which to make the payments or to otherwise pay to maintain the property.
A dispute ensued between the surviving spouse, the decedent’s children, and trustee over how to administer the trust and the homestead property.
The appellate court held that, because the property was homestead property, the property was not subject to disposition through the revocable trust. At the moment of death, the property passed to its owners:
In a twinkle of an eye, as it were, to his wife for life, and thereafter to his surviving sons. * * * From that moment forward, the trustees had no power or authority with respect to the former marital home. The widow became responsible for the expenses of the property, and, of course, remains so for as long as she remains a life tenant.
Is Homestead Property Part of the Probate Estate?
No. “Homestead property, whether devised or not, passes outside of the probate estate.”
Clifton v. Clifton, 553 So. 2d 192, 194 n. 3 (Fla. 5th DCA 1989). “Neither executors nor administrators have at any time in this State had any jurisdiction over the homestead of a deceased person. The homestead is in no wise an asset of the estate of a decedent.” Cavanaugh v. Cavanaugh, 542 So. 2d 1345, 1351 (Fla. 1st DCA 1989) “[W]hen devised to a qualified heir, decedent’s homestead property is not distributed as part of the decedent’s estate, and passes directly to the designated heir.” Estate of Shefner v. Shefner-Holden, 2 So. 3d 1076, 1078 (Fla. 3d DCA 2009). A homestead order is not required “to pass title to persons entitled to homestead property…” Clifton v. Clifton, So. 2d 192, 194 (5th DCA 1989).
This can be a source of confusion, since the probate court will rule on petitions to determine the homestead status of property and enter orders of homestead. But, the probate court is basically confirming rights that existed at the time of death, not creating new rights at the time of the entry of a homestead order.
What is The Authority of a Personal Representative of a Florida Probate Estate Regarding Florida Homestead Property?
The scope of a personal representative’s authority over a decedent’s homestead property is set forth in Fla. Stat. § 733.607(1), which provides that:
Except as otherwise provided by a decedent’s will, every personal representative has a right to, and shall take possession or control of, the decedent’s property, except the protected homestead.
Fla. Stat. § 733.608 goes one step further, explaining that the protected homestead is not an asset in the hands of the personal representative. Thus, the default rule in Florida is that, a personal representative is required to take possession of all of a decedent’s non-homestead property; however, homestead property does not become part of the probate estate subject to administration by the personal representative. See, e.g., Harrell v. Snyder, et al., 913 So.2d 749 (Fla. 5th DCA 2005).
Because of these statutory directives, a personal representative’s exercise of dominion over homestead is limited in both scope and circ*mstance. As a general rule, if real property appears to be homestead, the personal representative may:
[T]ake possession of the property for the limited purpose of preserving, insuring, and protecting it for the person having an interest in the property, pending a determination of homestead status.
Fla. Stat. § 733.608(2).
Importantly, this statute does not alter the status of the property—it is still non-probate homestead—it merely outlines what the personal representative can do during the administration process.
Is Homestead Property Included in the Elective Estate For Determination of Elective Share?
Yes. Section 732.2035 states that: “The decedent’s interest in property which constitutes the protected homestead of the decedent” enters into the elective estate. Section 732.2035, Fla. Stat.
An exception exists if there has been a waiver of homestead rights by the surviving spouse. Section 732.2045(1)(i) governs exclusions and states:
(i) Property which constitutes the protected homestead of the decedent if the surviving spouse validly waived his or her homestead rights as provided under s.732.702, or otherwise under applicable law, and such spouse did not receive any interest in the protected homestead upon the decedent’s death.
If upon the death of the spouse, the surviving spouse gets fee simple title to the homestead property, then the property is valued at fair market value on the date of decedent’s death. Section 732.2055(1).
If the surviving spouse takes a life estate, or elects to take a tenant-in-common interest, then the homestead property is valued at one-half of the fair market value on the decedent’s date of death for purposes of the elective estate. Section 732.2055
Is the Value of Protected Homestead Property Subject To Attorney Percentage Fees?
No. The statutory percentage compensation for the personal representative and the attorney for the personal representative for ordinary services is computed based on set amounts and percentages of the compensable value of the estate. See § 733.617, Fla. Stat. (personal representative commission) and § 733.6171, Fla. Stat. (compensation of attorney for the personal representative).
The compensable value of the estate is “the inventory value of the probate estate assets and the income earned by the estate during administration.” Id. The inventory value of the probate estate does not include the value of the homestead real property. Fla. Prob. R. 5.340 [“include for each listed item (excluding real property appearing to be protected homestead property) its estimated fair market value at the date of the decedent’s death.”].
The value of homestead property is not included in the inventory, because homestead property is not an asset of the estate. See Fla. Prob. R. 5.340. See Clifton v. Clifton, 553 So. 2d 192, 194 n.3 (Fla. 5th DCA 1989) (“Homestead property, whether devised or not, passes outside of the probate estate…it is not an asset of the estate.”).
Therefore, percentage fees are not permitted to be taken on the value of the exempt homestead property.
Can the Sale of Homestead Be Used to Pay Fees and Costs?
No.A Florida probate court cannot order personal representative fees and costs to be paid from the proceeds of protected homestead property over the objection of its owners. Why? Because the Florida homestead property inures immediately at death to the heirs, and is not an asset of the estate subject to administration or estate expenses. As explained in Lanford v. Phemister, 5D21-1015 (5th DCA 2022):
The Florida Constitution protects a homestead from “judgment[s], decree[s] or execution[s],” except for payment of certain limited debts. Art. X, § 4(a), Fla. Const. These homestead exemptions inure to the owner’s “surviving spouse or heirs.” Art. X, § 4(b), Fla. Const. After a decedent’s death, her heir “has legal ownership of the property,” and “she may sell it without regard to decedent’s creditors or administrative expenses.” Morey v. Everbank, 93 So. 3d 482, 488 (Fla. 1st DCA 2012) (quoting Est. of Shefner v. ShefnerHolden, 2 So. 3d 1076, 1078 (Fla. 3d DCA 2009)).
Can a Probate Lawyer Or Personal Representative Receive Compensation for Working on Homestead Property?
Yes, the probate lawyer representing the personal representative and the personal representative can be paid for working on the homestead property. However, receiving such fees requires some extra steps, by either filing and perfecting 733.608 lien, or by petitioning for fees for extraordinary services.
Personal Representative Lien on Homestead Property
If the personal representative opts to take possession of the protected homestead for the limited purpose of preserving, insurance and protecting the homestead, section 733.608(3) provides lien rights to the personal representative. Section 733.608(3) states, in part, that:
If the personal representative expends funds or incurs obligations to preserve, maintain, insure, or protect the property referenced in subsection (2), the personal representative shall be entitled to a lien on that property and its revenues to secure repayment of those expenditures and obligations incurred. These expenditures and obligations incurred, including, but not limited to, fees and costs, shall constitute a debt owed to the personal representative that is charged against and which may be secured by a lien on the protected homestead, as provided in this section.
In order to be entitled to a lien, the personal representative must take possession of the property (which cannot be occupied by an interested person), and the funds expended must be incurred for the purpose of preserving, maintaining, insuring, or protecting the homestead property.
Under Florida law, the personal representative is required to file a Notice of Taking Possession of Protected Homestead pursuant to Florida Probate Rule 5.404. The notice is required to contain:
- A legal description of the property;
- a statement of the limited purpose for preserving, insuring, and protecting it for the heirs or devisees pending a determination of the homestead status;
- the name and address of the personal representative and the personal representative’s attorney;
- if the personal representative is in possession when the notice is filed, the date the personal representative took possession.
In Herrilka v. Yates, a probate court’s order awarding a lien on the protected homestead was reversed. The order was reversed because the decedent’s alleged spouse lived in the house at all times, meaning the curator never took possession of the property, and because the fees requested were related to the estate administration, not for the preservation of the homestead property.
In order to determine the amount of the debt secured by the lien, the personal representative is required to file a petition and must serve formal notice on the persons appearing to have an interest in the property.
Petition for Fees For Extraordinary Services
Both the personal representative and the attorney for the personal representative have the option of petitioning for fees for extraordinary services. “Dealing with protected homestead” can be considered an extraordinary service of the personal representative. Section 733.617, Fla. Stat. (compensation of personal representative). The attorney for the personal representative may petition for additional compensation for “legal advice regarding homestead status of real property or proceedings involving that status and services related to protected homestead.” Section 733.6171 (compensation of attorney for the personal representative).
In order to receive fees from the estate for extraordinary services, a petition must be filed. These extraordinary fees would be in addition to fees for ordinary services in the estate.
Can the Homestead Property Lose its Protected Homestead Status Upon Death?
There is one situation where the homestead property can lose its homestead protection after the death of the owner. As held by the Florida Supreme Court:
“It is only when the testator specifies in the will that the homestead is to be sold and the proceeds are to be divided that the homestead loses its “protected” status.”
McKean v. Warburton, 919 So. 2d 341, 346-347 (Fla. 2005).
Can Homestead Rights be Waived?
Yes, the homestead rights and protections can be waived. However, since homestead is a constitutionally protected right, any waiver must be made “knowingly, voluntarily, and intelligently” and waivers of the homestead protections cannot be made in an unsecured agreement. Chames v. DeMayo, 972 So. 2d 850, 861 (Fla. 2007).
Therefore, a purported waiver of homestead rights contained in an unsecured agreement is not enforceable under Florida law.
No Waiver – Chames v. DeMayo
Chames v. DeMayo involved a creditor (an attorney) seeking fees by placing a lien on the homestead property. The Florida Supreme Court had to determine whether a “waiver” of the homestead exemption can occur in a retainer agreement. The answer was no, and the waiver of homestead protections found in the retainer agreement was not a valid way to award a lien for attorney’s fees on the client’s homestead. The Court stated:
Requiring that a waiver of the homestead exemption be made in the context of a mortgage assures that the waiver is made knowingly, intelligently, and voluntarily. In obtaining a mortgage, a homeowner is well aware that if the payments are not made, the home may be foreclosed upon. As we noted inCarter,“the very nature of the transaction implies the exercise of discretion and the contemplation of inevitable consequences.”Carter,20 Fla. at 570.A mortgage assures that the waiver of the homestead exemption, like the waiver of other rights, is made with eyes wide open–not inadvertently, deep in the entrailsof a retainer agreement. Those who truly wish to waive their homestead exemption–including DeMayo–can do so.
Chames v. DeMayo, 972 So. 2d 850, 861-862, 2007 Fla. LEXIS 2393, *33, 32 Fla. L. Weekly S 820
Waiver – Stone v. Stone
In a 2014 case from Florida’s Fourth District Court of Appeals, the appellate court ruled that boilerplate language in a deed operated as a waiver of the spouse’s homestead rights. Stone_v._Stone, 157 So. 3d 295, (Fla. 4th DCA 2014).
In Stone, the husband and wife married. After the marriage, they executed a deed conveying their homestead property to themselves, as tenants in common. The husband then conveyed his one-half tenant in common interest to a qualified personal residence trust (QPRT). The wife joined in the deed (which is required to covey homestead property in Florida).
The husband did not survive the term of the QPRT, which causes the property to revert back to the husband’s estate. The husband’s estate planning documents put the husband’s share of the homestead property into trust for the benefit of the wife. At her death, the property would go to their daughter. Their son was excluded as a beneficiary of the husband’s estate plan. The wife then died. The son claimed rights in the property, as homestead, contending that the planning that had taken place was not effective to deprive him of his remainder interest homestead rights.
The Court held that there were two transfers that took place. The first was the husband’s transfer of his interest to the QPRT, and the second was the subsequent transfer of the interest to the daughter after the wife’s death.
The first transfer of the property to the QPRT was not an impermissible “devise” of the property because it was an inter vivos transfer because the settlor did not retain a power to revest himself with the property, pursuant to Section 732.4017(1).
The second transfer entailed the reversion of the property to the husband’s estate (because he did not survive the term of the QPRT), and then passed to the daughter under the terms of the husband’s will. The court held that this second transfer was a devise, i.e., a testamentary disposition, which cannot be used to circumvent the restrictions on the devise of homestead property when there is a spouse.
The Florida Constitution states that homestead property cannot be devised if the owner is survived by a spouse, unless the devise is to the spouse. The devise to the daughter would therefore be ineffective unless the wife waived her homestead rights, which the Court held that she did.
The Court held that the wife waived her homestead rights by executing the deed splitting the property into two one-half tenancy in common interests.
Alma waived her homestead rights by executing the March 27, 2000 warranty deed splitting the property into two one-half tenancy in common interests and then transferring her interest into her QPRT. Section 732.702, Florida Statutes, provides in part, that “[t]he rights of a surviving spouse to . . . homestead . . . may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses.” § 732.702(1), Fla. Stat. (2011). Further, “[u]nless the waiver provides to the contrary, a waiver of ‘all rights,’ or equivalent language” may constitute a waiver of all homestead rights that would otherwise pass to the waiving spouse by intestate succession. Id. The deed Alma executed on March 27, 2000, provided that she “grants, bargains, sells, aliens, remises, releases, conveys, and confirms” the property “together with all the tenements, hereditaments, and appurtenances thereto belonging or in anywise appertaining.” We agree with the trial court that this constituted a waiver of any constitutional homestead rights Alma had in Jerome’s one-half interest in the property.
Because the wife had waived her interest in the homestead property, the husband was free to devise the property as he saw fit.
What is interesting about the opinion is that the Court allowed the very important homestead rights that married spouses have in Florida to be waived via the operation of common boilerplate language found in almost every warranty deed executed in the State of Florida.
Can an Invalid Homestead Bequest be Fixed?
No. Because homestead transfers at death, an invalid bequest cannot be fixed.In Stirberg v. Fein, 4D22-854 (4th DCA 2023) the Decedent conveyed his Florida homestead property to something called a Residence Trust. Pursuant to the Trust’s terms, the Decedent’s spouse was entitled to a life estate, with the power to appoint the remainder interest to her grandchild. Her grandchild was not the Decedent’s grandchild. This bequest violated the Florida Constitution because the Decedent was married without minor children and did not devise the homestead to his spouse in fee simple. As explained by the Court [incorrectly, because the following bold statement does not take into account minor children]:
Thus, any devise of homestead property that does not grant a fee simple interest to a surviving spouse fails, regardless of intent.
The Decedent’s children rightly claimed the remainder interest in the property. The trustee of the Residence Trust filed a reformation action, to reform the Residence Trust such that it would give Valerie, the surviving spouse, the residence in fee simple and free of trust, retroactive to the date of Decedent’s death.
The Court first noted the general law of reformation:
A party seeking trust reformation must establish “that the trust, as written, does not reflect the settlor’s intent.” Reid v. Estate of Sonder, 63 So.3d 7, 10 (Fla. 3d DCA 2011); see also Baldwin v. Estate of Winters, 944 So.2d 437, 439 (Fla. 4th DCA 2006) (“[T]he polestar to will interpretation is the intent of the testator.”)
In noting that this case is not like a general reformation case, the Court denied the reformation action, explaining as follows:
Homestead property rights vest immediately upon the death of a testator or settlor. See Aronson v. Aronson, 81 So.3d 515, 519 (Fla. 3d DCA 2012) (“At the moment of Hillard’s death, his homestead property passed outside of probate.” (citations omitted)); § 736.1109(1), Fla. Stat. (2022) (“If a devise of homestead under a trust violates the limitations on the devise of homestead in s. 4(c), Art. X of the State Constitution, title shall pass as provided in s. 732.401 at the moment of death.”).
Not even a retroactive action can validly cure a devise violating the homestead laws. See Gotshall v. Taylor, 196 So.2d 479, 481 (Fla. 4th DCA 1967) (“If the requirements of the Constitution and the statutes are not complied with in alienating homestead real estate, the attempt is a nullity . . . and is void ab initio, and subsequent events will not breathe life into it[.]”). A trust reformation is such a retroactive action and therefore cannot cure a devise violating the homestead laws. See Providence Square Ass’n, Inc. v. Biancardi, 507 So.2d 1366, 1371 (Fla. 1987) (“A reformation relates back to the time the instrument was originally executed and simply corrects the document’s language to read as it should have read all along.”).
Can Florida Homestead be Partitioned?
Yes, homestead can be partitioned. In Tullis v. Tullis, 360 So. 2d 375 (Fla. 1978), the Supreme Court held that these “constitutional provisions allow the partition and forced sale of homestead property upon suit by one of the owners of that property.”
Moreover, where property is indivisible, a unilateral act of one party taking possession and claiming the homestead exemption on the property does not affect the substantial rights of the other owners of the property. See Wescott v. Wescott, 487 So. 2d 1099, 1101 (Fla. 5th DCA 1986) (relying on Tullis, 360 So. 2d. at 377-78).
In Wescott, the Court noted that:
“[h]omestead interests should be protected from forced sale wherever possible, but not at the expense of others owning interests in the property.” Wescott, 487 So. 2d at 1101. There, exclusive possession of the home was given to the former-husband following the dissolution of the co-owners’ marriage. A contingency was placed on this right to exclusive possession, it would only last until their children reached majority. After the youngest child reached age 18, the former-husband moved out into another residence and sought partition. The former-wife moved in and claimed the home as her homestead. Id. at 1099.
The Court cited Tullis to state that:
[t]he purpose of the homestead exemption provision in our state constitution is to protect the family home from forced sale for the debts of the owner and head of the family. However, this court has never held that the homestead provision precludes a common owner of property from suing for partition and obtaining a forced sale in order to obtain the beneficial enjoyment of her interest in the property.
This understanding is important not just in divorce situations but in inheritance disputes as well. Under Florida law, when homestead property is not validly devised, it passes to the decedent’s heirs. Fla. Stat. § 732.401. Moreover, unlike probate assets, which are not distributed immediately upon death, the benefits of homestead property vest at death. Engelke v. Estate of Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006).
Thus, when a decedent dies owning homestead in Florida, any heir can theoretically take possession of the property immediately upon the decedent’s death and make the property his or her own homestead. Such action can be at odds with the wishes of the decedent’s remaining heirs. In the absence of a right to partition the property, the aforementioned circ*mstance would invariably result in a race to take possession of the decedent’s homestead. The right to partition prevents a situation in which the first heir to move in and claim the real property as their homestead wins. Importantly, any co-owner(irrespective of his or her proportionate interest) may seek a partition of real property.
What are the Important Homestead Cases in Florida?
Cavanaugh v. Cavanaugh, 542 So. 2d 1345, 1351 (Fla. 1st DCA 1989) (homestead is not an estate asset)
“Neither executors nor administrators have at any time in this State had any jurisdiction over the homestead of a deceased person. The homestead is in no wise an asset of the estate of a decedent.”
Chames v. DeMayo, 972 So. 2d 850, 861 (Fla. 2007) (waivers of homestead protections must be knowing, intelligent, and voluntary)
“We continue to hold that a waiver of thehomesteadexemptioninanunsecuredagreementis unenforceable.”
Clifton v. Clifton, 553 So. 2d 192 (Fla. 5th DCA 1989) (personal representatives have no jurisdiction over homestead) (no homestead order is required to pass title to homestead)
“Homestead property, whether devised or not, passes outside of the probate estate.Personal representatives have no jurisdiction over nor title to homestead, and it is not an asset of the testatory estate.”
“The fact that the probate court failed to enter a formal order of distribution concerning thehomesteadin the Clifton probate is significant. No such order is required to pass title to persons entitled tohomesteadproperty, nor is a personal representative’s deed required.”
Cutler v. Cutler, 994 So. 2d 341, 345 (Fla. 3d DCA 2008) (homestead protections inure at death) (when testator directs sale of homestead and distribution of proceeds, homestead protections lost)
“[T]he benefits of homestead protections vest in a qualified beneficiary at the moment of a testator’s death…”
“It has long been recognized that the owner of homestead property may devise that property in a manner that terminates the protections accorded byarticle X, section 4.InEstate of Price v. West Florida Hospital., Inc.,513 So. 2d 767, 767 (Fla. 1st DCA 1987), the court confirmed that where a testator directs the sale of homestead property and distribution of the proceeds, the proceeds lose their homestead character and become part of the estate subject to administrative costs and creditors’ claims.”
Estate of Shefner v. Shefner-Holden, 2 So. 3d 1076 (Fla. 3d DCA 2009) (homestead is not a part of the probate estate)
“[W]hen devised to a qualified heir, decedent’s homestead property is not distributed as part of the decedent’s estate, and passes directly to the designated heir.”
Havoco of Am. v. Hill, 790 So. 2d 1018 (Fla. 2001) (purchase of homestead to evade creditors is generally permitted)
“Thetransferof nonexempt assets into an exempt homestead with the intent to hinder, delay, or defraud creditors is not one of the three exceptions to the homestead exemption provided in article X, section 4. Nor can we reasonably extend our equitable lien jurisprudence to except such conduct from the exemption’s protection.”
McKean v. Warburton, 919 So. 2d 341 (Fla. 2005) (if homestead not specifically devised it goes to the residuary devisees) (only when the testator specifies in the will that the homestead is to be sold and proceeds divided does homestead lose protected status)
“[W]here a decedent is not survived by a spouse or minor children, the decedent’s homestead property passes to the residuary devisees, not the general devisees, unless there is a specific testamentary disposition ordering the property to be sold and the proceeds made a part of the general estate.”
“It is only when the testator specifies in the will that the homestead is to be sold and the proceeds are to be divided that the homestead loses its “protected” status.”
Monks v. Smith, 609 So.2d 740 (Fla. 1st DCA 1992) (Equitable principles cannot be used to deny homestead status)
“However, “the homestead protection has never been based upon principles of equity.”Public Health Trust of Dade County v. Lopez,531 So. 2d 946, 951 (Fla. 1988). The surcharge proceeding against Monks may have been entirely appropriate, and certainly Monks will be personally liable for the judgment against her. But that in itself is an entirely separate issue from the legal question of homestead, to which the equitable defense of unclean hands has never applied.”
Snyder v. Davis, 699 So. 2d 999 (Fla. 1997) (homestead provisions construed liberally) (anyone in the class of intestate heirs who inherits homestead receives protections)
“We have consistently made it clear that the homestead provision must be given a broad and liberal construction. In the context of this case, we reject the narrow entitlement definition of the term “heirs” that includes only those people who would inherit under the intestacy statute at the death of the decedent. Instead, we hold that the homestead provision allows a testator with no surviving spouse or minor children to choose to devise, in a will, the homestead property, with itsaccompanying protection from creditors, to any family member within the class of persons categorized in our intestacy statute.”
Stone_v._Stone, 157 So. 3d 295 (Fla. 4th DCA 2014) (boilerplate language in deed can operate as waiver of homestead rights)
“The deed Alma executed on March 27, 2000, provided that she “grants, bargains, sells, aliens, remises, releases, conveys, and confirms” the property “together with all the tenements, hereditaments, and appurtenances thereto belonging or in anywise appertaining.” We agree with the trial court that this constituted a waiver of any constitutional homestead rights Alma had in Jerome’s one-half interest in the property.”
Tullis v. Tullis, 360 So. 2d 375 (Fla. 1978) (homestead property can be partitioned)
“We hold, with the First District, that our constitutional provisionsallowthe partition and forced sale of homestead property upon suit by one of the owners of that property, if such partition and forced sale is necessary to protect the beneficial enjoyment of the owners in common to the extent of their interests in the property.”
White v. Theodore Parker, P.A. (in Re Estate of Hamel), 821 So. 2d 1276 (Fla. 2d DCA 2002) (homestead protections vest at death and protection from creditors’ claims inures to heirs)
“Generally,property rights passing by virtue of the death of a personvestat the time of death.See§ 732.101(2), Fla. Stat.(2000) (involving intestate estates);§ 732.514, Fla. Stat.(2000) (involving devises);Rice v. Greenberg (In re Estate of Rice), 406 So. 2d 469, 473 (Fla. 3d DCA 1981)(involving remainder interests);Estate of Broome, 375 So. 2d 594 (Fla. 5th DCA 1979)(involving dower). The same has been held true for home stead.SeeWilson v. Fla. Nat’l Bank & Trust Co., 64 So. 2d 309, 313 (Fla. 1953)(holding thatappropriate time to determine homestead status is at death of the decedent, regardless of whether property thereafter continues to be homestead). If the property is homestead on the date of death, the homesteadprotection is impressed upon the land and the protection from creditors’ claims inures to the benefit of the heirs to whom the property is devised.”
“[H]eirs’ homestead rights attached prior to the transfer and that the proceeds of that sale are protected from the claims of the decedent’s creditors.”
Wilson v. Fla. Nat’l Bank & Trust Co., 64 So. 2d 309, 313 (Fla. 1953) (appropriate time to determine homestead status is at death of decedent, regardless of whether property thereafter continues to be homestead).
