One’s true and single abode, or home, is your Florida homestead. And family members inherit millions, if not billions, of dollars each year from this unique asset. How do you get yours? For more on homestead litigation, click that link.
Understanding the Basics
Here’s a list of important bullet points that will start you on your way to understanding homestead. To assert your right to an inheritance, you may need to file two things, if everybody cannot agree. A petition to determine homestead or beneficiaries. And maybe a partition action.
The truth is that lots of Florida residents, even really rich ones, die without a will. All the time. That means that millions of dollars are going to “heirs.” Most of the time, one of the most valuable assets in the estate is the house. Here are things you need to know :
- Each Florida resident has one homestead. Only one, no matter how many houses you have.
- There are three areas of legal importance: creditor protection, real estate taxes and who gets it when when you die. This commentary is about the last topic.
- There are restrictions on how you can, must or may leave it. (it’s often referred to as restrictions on “devise”)
- If left one way, the house is said to automatically “descend” to the heirs. (a spouse is included in the class of heirs)
- You cannot dis-inherit your spouse from your homestead unless he agrees in writing.
- Yes, spouses in Florida have automatic rights to homestead inheritance. UNLESS they waive their rights properly. For a recent case on this point, click HERE. That case deals with a surviving spouse, no will in the probate, and a prenup– and what the prenup said.
- Homestead comes into play when you die. And there is no will. That’s called intestacy. Heirs inherit.
- But, if there is a will, read the will carefully. Sometimes, terms in the will which dispose of the house are not valid. Talk to an experienced probate litigator who handles these trials. There are lots of quirky, weird rules on this topic. And sometimes the house does not have “homestead” status, even when you think it does.
Homestead Florida — why so difficult?
- Surviving spouses and children (“descendants” or “issue”) have almost guaranteed inheritance rights. Not sure who is an “heir”, click here.
- The spouse gets a life estate in the homestead. He or she can live there for her life.
- Unless he files a 6 month election to be a “joint owner” or “co tenant”. Read 732.401(2). In that case the house can be sold and the spouse gets one half of the sale proceeds. The kids get the rest.
- This is really important and a huge benefit for adult children and spouses. Let me repeat this. Many times there is a surviving spouse who does not get along with the deceased Florida resident’s adult children. And vice-versa. They can’t imagine co-owning a house together. So, why not sell it and split the sale proceeds under the law? Have a “financial divorce” and everyone gets cash.
- While homestead is not considered a probate asset, we often file petitions or motions with the court. In probate court. Sound confusing? Don’t feel bad. Most family members ask why this legal topic is so difficult. For example, there may be an advantage to having a declaration that the house is homestead. Most title companies want to see such an order before issuing title (like when you go to sell the homestead).
- And, the personal representative can, under conditions and limited circumstances, take possession of the house and protect it. Read Florida Probate Rule 5.404. (for info on an appeal, click here)