florida constitutional limits on the devise of homestead property While the property tax exemption and asset protection aspects of homestead provide opportunities for you to use your homestead to your benefit, the constitutional limitation on devise can be a trap … The revocable trust bequeathed a life estate to the spouse, in trust, with the remainder interest, in trust, to the decedent’s children from an earlier marriage. Therefore, to qualify as a person’s homestead, the property must meet these size requirements and m… The homestead property must not be larger than a ½ acre in a municipality, and 160 acres outside a municipality. Homestead property is protected against levy and execution by most judgment creditors (and against creditor claims post death), receives special property tax treatment and is subject to specific restrictions on its descent and devise upon the death of the owner. (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. When is Homestead Status Determined Regarding Heirs? What is The Deadline To Challenge Will in Florida Probate? 2d at 284. Section 732.702, Florida Statutes, provides in part, that “[t]he rights of a surviving spouse to . (in Re Estate of Hamel), 821 So. Such action can be at odds with the wishes of the decedent’s remaining heirs. Ballot measure laws | The surviving spouse is permitted, in lieu of a life estate, to elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of decedent’s death. (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. (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. In bankruptcy, you are not entitled to the unlimited protection against creditors for homesteads. Yes. § 733.608 goes one step further, explaining that the protected homestead is not an asset in the hands of the personal representative. No. 4(c), Article X , of the Florida Constitution and F.S. If the owner of homestead real property attempted to devise homestead in a manner not permitted by the constitution, or failed to make a devise of the homestead, 732.401(1), Florida Statutes, provides: Both the personal representative and the attorney for the personal representative have the option of petitioning for fees for extraordinary services. Campaign finance requirements | As held by the Florida Supreme Court: “It is only when the testator specifies in the will that the homestead is to be sold and the proceeds are to be divided that the homestead loses its “protected” status.”. Florida statute 731.201 (33) defines property described by Art. The Florida Supreme Court had to determine whether a “waiver” of the homestead exemption can occur in a retainer agreement. The public policy furthered by a homestead exemption is to: [P]romote 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. If the property is homestead on the date of death, the homestead protection is impressed upon the land and the protection from creditors’ claims inures to the benefit of the heirs to whom the property is devised.”, “[H]eirs’ homestead rights attached prior to the transfer and that the proceeds of that sale are protected from the claims of the decedent’s creditors.”. Yes, homestead can be partitioned. How to Probate a Will in Florida - The Complete Guide, Responsibilities of the Personal Representative in Florida Probate. Instead, the Florida homestead protection only applies if a debtor has lived in Florida for at least 40 months. 2d 469, 473 (Fla. 3d DCA 1981) (involving remainder interests); Estate of Broome, 375 So. Olesky v. Nicholas, 82 So. 2d 192, 194 n. 3 (Fla. 5th DCA 1989). The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. R. 5.340 [“include for each listed item (excluding real property appearing to be protected homestead property) its estimated fair market value at the date of the decedent’s death.”]. Yes, homestead property held by a revocable trust is treated as if held directly by the grantor of the revocable trust. Simply, the rules of homestead are always there and always considered. In order to be entitled to a lien, the personal representative must take possession of the property (which cannot be occupied by an interested person), and the funds expended must be incurred for the purpose of preserving, maintaining, insuring, or protecting the homestead property. Florida Resident. Taxes. If upon the death of the spouse, the surviving spouse gets fee simple title to the homestead property, then the property is valued at fair market value on the date of decedent’s death. If there are no minor children and no surviving spouse, the Florida homestead can be bequeathed to anyone. Who Can Homestead Property Be Devised To With a Will? 2d 341, 346-347 (Fla. 2005). The deed Alma executed on March 27, 2000, provided that she “grants, bargains, sells, aliens, remises, releases, conveys, and confirms” the property “together with all the tenements, hereditaments, and appurtenances thereto belonging or in anywise appertaining.” We agree with the trial court that this constituted a waiver of any constitutional homestead rights Alma had in Jerome’s one-half interest in the property. In Florida, a person’s homestead is their principal place of residence and as homestead, the property has certain benefits and protections. Personal Representative Lien on Homestead Property. Once established as a homestead, it will remain the same until the owner notifies the property appraiser's office of any change in this status. X, Section 4 (a)- (b) of the Florida Constitution ; restrictions on devise and alienation, Art. Section 733.608(3) states, in part, that: If the personal representative expends funds or incurs obligations to preserve, maintain, insure, or protect the property referenced in subsection (2), the personal representative shall be entitled to a lien on that property and its revenues to secure repayment of those expenditures and obligations incurred. Acreage Restrictions. Protected Homestead. Was decedent’s homestead devised (even by the will or trust residuary)? The only available asset of the testator is said to be the house which is his homestead. At the time of the decedent’s death, the decedent owned an interest in real property that the affiant believes to be homestead property described in s. 4, Article X of the State Constitution, that real property being in County, Florida, and described as: (description of homestead property) . Devise Of Homestead Florida law prohibits the devise of homestead property if the owner is survived by a surviving spouse or minor child. The second transfer entailed the reversion of the property to the husband’s estate (because he did not survive the term of the QPRT), and then passed to the daughter under the terms of the husband’s will. Therefore, whether by devise or by the laws of descent and distribution, if the homestead property is inherited by someone within the class of intestate heirs, the protections impressed upon that homestead inure to those beneficiaries. Upon death of the person whose property was selected his homestead goes to his heirs or devisees [i]. The Florida constitution Article 10, section 4 of the Florida constitution provides: SECTION 4. Prior to the enactment of the revised Florida Homestead statute, if the Homestead was not devised in a way that was permitted by Florida law, the surviving spouse automatically received a life estate in the Homestead property and any minor children received a vested remainder in the property. . About the only applicable exception is if the married parties have a pre-nuptial agreement where one spouse waives all entitlement to homestead protection. If the homestead is not in joint names, Article X, sec 4 (c) of Florida’s Constitution allows a homestead to be devised to a spouse if there are no minor children. See, e.g., Harrell v. Snyder, et al., 913 So.2d 749 (Fla. 5th DCA 2005). If the homestead is devised to persons outside of the class of intestate heirs, the protections will not inure to those devisees. The order was reversed because the decedent’s alleged spouse lived in the house at all times, meaning the curator never took possession of the property, and because the fees requested were related to the estate administration, not for the preservation of the homestead property. After the youngest child reached age 18, the former-husband moved out into another residence and sought partition. If the will devises the decedent’s homestead to nonqualified beneficiaries, by law, it has subjected that property to the claims of creditors (the exemption will not inure) and thereby to probate administration, just as if the will had said “I devise my ‘homestead to my good friend Bessie, however I direct that my personal representative shall take possession of that property and shall use it for purposes of … Section 732.2045(1)(i) governs exclusions and states: (i) Property which constitutes the protected homestead of the decedent if the surviving spouse validly waived his or her homestead rights as provided under s. 732.702, or otherwise under applicable law, and such spouse did not receive any interest in the protected homestead upon the decedent’s death. Those who truly wish to waive their homestead exemption–including DeMayo–can do so. § 733.607(1), which provides that: Except as otherwise provided by a decedent’s will, every personal representative has a right to, and shall take possession or control of, the decedent’s property, except the protected homestead. Environment | “Homestead property, whether devised or not, passes outside of the probate estate.”. Homestead property is the primary residence of a natural person, and the Florida Constitution affords it certain protections. The widow became responsible for the expenses of the property, and, of course, remains so for as long as she remains a life tenant. If there are no surviving descendants of the decedent, then the surviving spouse inherits the entire homestead. Financial regulation | … 2d 999 (Fla. 1997). Article X, Section 4 of the Florida Constitution defines “homestead” property. The Florida Homestead Exemptions and Devise of Property Amendment, also known as Amendment 5, was a legislatively referred constitutional amendment on the November 7, 1972 ballot in Florida, where it was approved. These three different homestead protections are discussed at length below, and are set forth in Article X, Section 4 of the Florida Constitution, which states: (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) “Devise” includes a disposition by trust of that portion of the trust estate which, if titled in the name of the grantor of the trust, would be the grantor’s homestead. Section 732.2035 states that: “The decedent’s interest in property which constitutes the protected homestead of the decedent” enters into the elective estate. Under Florida law, if a decedent is only survived by a spouse and adult children, unless the spouse waives her homestead rights, the decedent may only devise a … As such, there is little way to get around them. At the time of his death, the property was his homestead property. Section 732.4015 of the Florida Probate Code provides: (1) As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or a minor child or minor children, except that the homestead may be devised to the owner’s spouse if there is no minor child or minor children. 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