Homestead Litigation

Florida Homestead is an often-litigated estate topic from Miami-Dade, through Palm Beach, to Orlando. Why?

Well, admittedly the Florida homestead laws are unique, even a bit crazy. Did you know that minor children and spouses, like husbands, wives & widows, have a right to one’s Florida homestead? Did you know that Homestead is not technically a probate asset?

Florida homestead is typically titled in the name of an individual, although Florida trust lawyers and probate litigators often, well, litigate about homestead when it is in the name of a trust. Remember, when we talk about Florida homestead, we need to understand what one of three topics we are talking about: 1) real estate taxes; 2) protection from creditors in Florida; 3 ) who inherits Florida homestead — what Florida probate lawyers refer to as “descent & distribution.”

It may come as a shock, but you can’t just give away, transfer, sell or assign your true homestead if you have a spouse and minor children.

And, you can’t just dis-inherit your spouse or your minor children from your homestead. Why? Read this part of the Florida Probate Code.

Read Florida Statutes 732.401 and 732.4015 about how Florida homestead goes to a spouse or widow and minor children: or, maybe not. So, if there was a lifetime transfer of homestead on dad’s death bed, or when mom had dementia, this may, or may not, be valid. Question the transfer! Find out the facts and the probate law. Such a lifetime gift of Florida homestead, or inter vivos transfer of homestead is written about in the Florida Probate Code at 732.4017.

What’s the bottom line? If you are a minor child, or were a minor child when a transfer of homestead took place, or you are the parent of a minor child, listen up. If you are the spouse of a deceased Florida resident, and you did NOT waive your homestead rights, such as in a prenuptial agreement, then you need to ask yourself if you, or your minor child, inherit the homestead: even if it was given away before death, and even if, it is left to someone else in a will or trust. Florida homestead rights can be valuable. Remember: there is no dollar limit $$$ to your rights. A mansion in South Beach worth $20 Million is no different than a $100,000 mobile home in Ft. Pierce, Florida under the homestead and inheritance laws. If you are non marital child of your rich dad, wake up ! You may have rights to his homestead if he left it to someone else. Is this baby-momma law? Indeed? A child is a child, an heir, whether born of a marriage, or born from a mistress or from a fling or an affair. That minor child may have valuable property rights to the father’s homestead under the Florida probate code or Florida real estate and homestead law if the homestead is sold or left at death. Even if there were a family law support judgment. The only question is whether paternity was determined and whether any parent gave up parental rights. You should understand these rights and the homestead laws to understand your inheritance rights.