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The Florida Constitution defines homestead property as the owner’s main residence, which must meet certain requirements regarding size and contiguity. The Florida Constitution offers several forms of protection for the homestead of a resident of the State of Florida, some of which are significantly relevant when it comes to Florida probate. Specifically, Article 10, Section 4 of the Florida Constitution prohibits the sale of homestead property for the satisfaction of claims from creditors, with only a few exceptions. Also, the Florida Constitution restricts the right of the owner to devise homestead property through a last will and testament if the owner is survived by a minor child or a spouse.
The protection of homestead property from a forced sale comes into play when the homestead is the most important asset of a decedent’s estate, and the remaining estate assets are insufficient to pay all valid creditor claims that have been filed against it. It is well established among the Florida probate courts that the protection of homestead from a forced sale to satisfy creditor claims against the decedent’s estate inures to the benefit of the heirs of the estate. Consequently, as long as a homestead property will pass to an heir in accordance with the Florida laws of intestacy, then the homestead will be protected from a forced sale to satisfy creditor claims against the estate.
The constitutional restrictions on division come into play clearly when it comes to probate, as well as estate planning. This restriction promotes the underlying principle behind homestead protection: the residence of the family must be protected. For that reason, when drafting Florida wills and trusts, it is important to keep in mind that, under Florida law, a homestead occupied by the minor child and/or the spouse of a deceased owner cannot be devised. However, if the owner does not have a spouse or a minor child, the homestead may be devised by the owner without any restrictions. As mentioned above, the protection against creditors provided to Florida homestead property will inure to the beneficiary as long as the beneficiary is an heir of the decedent in accordance with the Florida laws of intestacy.
As mentioned above, homestead protection under the Florida Constitution provides a number of protections for the persons who claim the property as their main residence. Apparently, the purpose of homestead protection in Florida, originally, was to protect the spouse of a decedent who was an unreliable spouse. In this context, an example of an unreliable spouse would be someone who created significant debts through gambling. In a case such as this one, a creditor in Florida would not be able to force the sale of homestead property for the gambling debts incurred by the unreliable spouse.
However, the Florida homestead exemption does not protect property from sales for debts from property taxes, construction liens, mortgages, special assessments, or vendor’s liens. Additionally, homestead property in Florida is only protected up to a certain amount of land; specifically: up to 1/2 acre of property within a municipality and up to 160 acres of property outside of a municipality. Anything beyond these limits can be forced to be sold by creditors of the estate.
In addition to the above-mentioned benefits, Florida homestead exemption also allows an exemption of property tax of a $25,000 amount from city, county and school board assessed values. There are also other homestead exemptions from taxation, such as for those whose spouses have passed away, those of a certain age, and those with disabilities.
To obtain homestead exemption, a property owner must apply at the office of the county property appraiser with proof of home ownership.
It is important to mention that, under the “Save Our Homes” amendment to the Florida Constitution, the amount that the assessed value of homestead property in Florida can increase each year is strictly limited to only 3% or the percentage change in the Consumer Price Index, whichever amount is lower.
Farshchian Law, P.A. – Your Florida Probate Law Firm
At our Miami Probate Law Firm, Farshchian Law, P.A., we handle cases involving all matters related to Florida Probate.
If you need help in a probate-related matter, Farshchian Law, P.A. can help you. Call us at (305) 901-5628 or send us an email to Probate@JFRealEstateLaw.com to schedule an initial consultation and get started.
