The state of Florida offers strong homestead protection. If a Florida resident’s primary residence qualifies as a homestead, it may not be affected by most cases of bankruptcy, judgments, liens, and creditors’ claims.
Florida Homestead Protection – The Basics
While other states offer only partial homestead protection, Florida offers full homestead protection for residential properties that meet the legal requirements.
With few exceptions, Section 4 of Article X of the Florida Constitution provides that “there shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, (…) the following property owned by a natural person:
- 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
- Personal property to the value of one thousand dollars”
The same legislation specifies that “these exemptions shall inure to the surviving spouse or heirs of the owner.”
Can You Homestead a House in a Trust in Florida? – The Verdict
It is possible to transfer homestead property to a Florida trust. Depending on the circumstances of the property’s owner, titling a homestead to a trust requires a strategic approach.
The Florida Constitution provides in Article X, Section 4(c) that “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 same statute adds that “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.”
If the owner of a Florida homestead is survived by a spouse or minor children, the interest in the property is “devise-restricted.” In such cases, the heirs do not receive the property through the decedent’s last will during probate.
As the interest in the homestead is devised to heirs according to Florida statutory rules, preventing how the statutory system of descent will distribute the interest in the homestead is a complex task.
If the owner of the homestead decides to transfer the property to a trust, it is crucial to prepare the documents with language expressly protecting the interests of all designated beneficiaries, including a spouse, a former spouse, and children from different marriages.
The best approach is to consult with an experienced probate attorney to identify whether transferring a homestead to a Florida trust is a good idea.