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March 23, 2023

One reoccurring issue in Florida law and Probate Administration is the application of Homestead protections from a decedent to a beneficiary. During lifetime a property determined homestead has the benefit of lowered property taxes, exemption from forced sale and the prohibition as to devise for protected classes. These benefits stem directly from the Florida constitution:

Fla. Const. Art. 10 Section 4:

§ 4. Homestead; exemptions

(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.

This inuring to the benefit of survivors is especially important for probate proceedings as the homestead can get exempted in the Probate Administration through an Order Determining Homestead Status of Real Property. This pulls the Property out of the Probate administration and vests title directly in the name of those entitled to take the homestead benefit. So for example, a Probate administration with a large medical bill (an unsecured creditor) can vest title in homestead (meaning transfer ownership) to an heir outside of probate. This can often have the effect of avoiding the necessity of selling Property or paying unsecured creditors altogether and thus the determination of who is entitled to the protection of a determination of homestead status and the above referenced “inuring” can be a critical issue in a Florida Probate administration.

In Traeger v. Credit First Natl 864 So. 2d 1188, (Fla. 5th DCA 2004), the Florida 5TH District Court of Appeal addressed the issue of whether a stepchild could inherit homestead property under Florida law. The case involved a decedent who was survived by his wife and two stepchildren but had no biological or adopted children. The decedent left a will, bequeathing the homestead property to his wife, who later died without a will.

The Court looked at subsection (b) highlighted above and held that the definition of heir is that found as “those who may under the laws of the state inherit from the owners of homestead and those who are entitled to intestate succession of the Property as defined in Fla. Stat. 731.201.

Aside from the spouse, the intestate heirs are defined by Fla. Stat. 732.103 which provides:

732.103. 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.

Recognizing that stepchildren as identified about in paragraph 5 are of the class highlighted under the laws of intestacy, the Court extended the application of homestead to stepchild. In doing so the Court highlighted the liberal view of providing protection to folks to inherit Property as homestead as that fulfils the underlying purpose of the intent of the law. Here is a blurb from the opinion:

The purpose of the homestead exemption under Florida law and its attendant protections derives from public policy rather than principles of equity “to promote 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.” Snyder, 699 So.2d at 1002 (quoting Public Health Trust v. Lopez, 531 So.2d 946, 948 (Fla.1988)). The court in Snyder noted that in order to promote the declared purpose of homestead exemption, the homestead provision in Florida’s constitution “is to be liberally construed in favor of maintaining the homestead property.” Id. at 1002, 1005. It found that “the protections against creditors found in the homestead provision may be devised by will” and that a broad definition of “heirs” was appropriate. Id. at 1003–04, 1005.

The application of homestead rights in a probate proceeding in Florida is complicated and this is an area of the law that is constantly changing. We litigate and administer Estates throughout the state of Florida. If you have issues that deal with Homestead or anything else regarding Probate or Trust Administration give us a call. We offer no obligation free consultations.

Disclaimer:   The information contained in this blog/website is for informational purposes only and provides general information about the law but not specific advice.  This information should not be used as a substitute for advice from competent legal counsel as laws change and the facts in your specific case need to be analyzed.