Summer is about to end.  Classes are about to start and stores are crowded with parents trying to get the best deals on school supplies.  Florida has many benefits, like inexpensive college tuition for in-state residents, warm weather all year round and access to theme parks, like Disney and Universal Studios.  However, there is also another benefit of living in Florida—the homestead protection provided by the Florida Constitution.

The overall purpose of the homestead exemption is to protect the family by protecting a family’s shelter from being attacked by creditors. In this regard, the Florida Constitution protects homesteads in three specific ways: (1) it provides a homestead with an exemption from taxes; (2) it protects homesteads from forced sale by creditors; and (3) it delineates the restrictions a homestead owner faces when attempting to alienate or devise the homestead property. Also, homestead prevents loved ones from having to go through the lengthy and expensive process of probate because the homestead is passed directly to the designated heir.

Be that as it may, homestead creates interesting circumstances with regards to probate. When a property owner dies, there are restrictions on how the property can be transferred to the family.

Who gets the property will often rely on who survives the decedent. If a spouse or minor child survives the owner of a homestead property, the homestead may not be devised.  If there is no minor child, the surviving spouse gets the property. However, the property owner may not give less than a fee simple interest to the surviving spouse.  If a spouse and lineal descendants survive the decedent, the surviving spouse takes a life estate in the homestead with a vested remainder to the lineal descendants in being at the time of the decedent’s death, per stirpes.

Ultimately, homestead laws trump any clauses in a will or trust.  If a spouse or lineal descendant survives a decedent, the descendant cannot devise the property to anyone in a will or trust.  Therefore, it is important to understand how homestead property could affect your overall estate plan.

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It’s A Wild World. Are Your Protected?