Homestead Law in Florida

by Zana Holley Dupee

There is a lot of homestead litigation lately producing some interesting court rulings.  This, of course, begs the question as to what "homestead law" is in Florida.  Most people think we are talking about "claiming homestead" on property taxes to get the tax exemption.  That is certainly one meaning of homestead in Florida.  However, the concept of "homestead" in found in various parts of the law in Florida, and it has different implications in different contexts.

In real estate and probate law, lawyers are often more concerned about the Florida Constitutional homestead provisions than about the tax exemption.  The Florida Constitution Article X Section 4 provides:

(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.

Based on this Constitutional provision, the homestead is protected from creditors.  This constitutional protection from creditors is inherited by the heirs of the owner.  Also, the spouse has "homestead rights," and they are not allowed to be "disinherited" without their consent.  So, how does this affect real estate and probate?  Well, just because one spouse's name is not on the property does not mean that they don't have rights in the property.  The spouse in title would need the other spouse's signature to deed or mortgage the property.  The spouse in title cannot will the property to someone else unless the other spouse signs a waiver of their homestead rights in the property.  Also, as a related matter, in family law, the marital home is considered to be a part of the marital estate in the divorce context regardless of which spouse's name is on title, unless there is a valid prenuptual or postnuptual agreement changing that.  The homestead is also considered "Exempt" property when qualifying for Medicaid and for bankruptcy.

The bottom line is the "homestead" is a very valuable type of property in Florida which the law goes to great lengths to protect for the owner and their spouse.  Please get a good lawyer to review your situation before you make decisions about your homestead because you may have rights or options that you did not know you had.  Also, you may not be allowed to do certain things without your spouse's consent even if you are the only person in title on the property.

If you have questions about your homestead property and your legal rights, or if you need assistance with real estate, probate or trust litigation, you can call Zana Holley Dupee to schedule a consultation at (352) 379-5900.