The state of Florida has unique legal procedures to probate homestead property. As provided by Florida Statutes §733.607, homestead property is not considered a probate asset within state jurisdiction – unless for a few exceptions.
In this article, you will find out the essentials of homestead inheritance law in Florida.
Florida Homestead Protection – Understanding the Concept
As provided by Florida law, homestead protection applies to real property of no more than 160 contiguous acres outside a municipality, or no more than one-half of an acre of contiguous land in a municipality, with any improvements made on it, and owned by a natural person.
Plus, homestead protection applies only to someone’s primary or permanent residence prior to death. Hence, non-resident aliens cannot claim homestead status, as they do not intend to make real property their legal permanent residence in the country.
In Florida, homestead properties are granted three different protection layers. First, a living homestead owner cannot transfer the property under protection during their life while married.
Hence, married homestead property owners may only transfer the protected property to their respective spouses. To transfer a homestead property- either by selling or mortgaging it – to someone other than his/her spouse, state law requires the spouse’s contentment and joinder in the transfer.
Secondly, homestead protection limits the right of a property’s owner to dispose of the property upon death. If the owner of the homestead is survived by a spouse or minor children, the owner cannot bequest or gift the home.
Nonetheless, if the homestead owner is married but without minor children, it is possible to bequest or gift the property – to the owner’s spouse exclusively.
Lastly, homestead protects property owners from forced sales caused by most judgment creditors. Still, there are exceptions to this rule, such as:
- Debts associated with the acquisition of a homestead
- Debts incurred by improvements and repairs to the homestead
- Liens from mortgages and HOA or condominium association dues
- Property taxes
- State taxes and IRS tax liens
Florida Homestead Law Inheritance – In Detail
Once a probate court determines a property to be a protected homestead, the property will go through probate as it is not considered an estate asset subject to probate.
Generally, the inheritance rule applied in most cases is that the decedent’s surviving spouse will receive the homestead property, and only then the minor children. However, there are still many exceptions.
For instance, in case the decedent passed away but left a surviving spouse and no children, the surviving spouse will inherit the homestead property in its entirety. Still, if the decedent has surviving children, the surviving spouse will inherit a life estate. Hence, he/she has the right to live in the property until their death.
On the other hand, the children will inherit a “vested” interest in the remainder, that is, they will receive the property upon the death of the surviving spouse and the end of the life estate.
Florida Homestead Law Inheritance – Immediately Contact Your Florida Probate Lawyer
Homestead protection is one of the most complex topics during probate in Florida, which requires expert legal guidance. Waste no time with uncertainty – call Attorneys Romy B. Jurado and Diana L. Collazos at (305) 921-0976 or email [email protected] to schedule a consultation.