A Guide to Florida Homestead Laws
The laws governing Florida homestead properties are some of the most complicated in the country. Even some Florida residents find them confusing. The main question is: When is a Florida property considered to be a homestead so that it qualifies for all the protections and restrictions offered by Florida homestead laws? You and your home must meet three criteria.
When a Home Is Considered Your Florida Homestead
You must have legal or beneficial title to the home on January 1 of the year in question, and you must reside at the home as your permanent residence. The third qualifier is that you must apply for the homestead exemption in person at the property appraiser's office in the county where your home is located between January 1 and March 1 of the year in which you are seeking the homestead exemption.
Homestead status generally stays in place until you inform the property appraiser's office that the property is no longer your Florida homestead. Some counties send a letter or postcard to remind you that you're required to let the property appraiser's office know when your home is no longer your homestead.
Florida homestead laws fall into three different categories: real estate taxes, creditor protection, and death, descent, and distribution.
Real Estate Taxes
Your Florida homestead is entitled to receive certain exemptions from real estate taxes. The Florida Department of Revenue's website provides a complete list of these exemptions. Under Florida's "Save Our Homes" cap on assessments, the annual valuation of your homestead for property tax purposes can only increase by the lesser of 3 percent or the percentage change in the Consumer Price Index for the prior year. This generally leads to significant savings on your real estate taxes the longer you own your homestead property.
A ballot initiative scheduled for November 2018 contains what is being referred to as a "controversial amendment" that may expand the exemption. If passed, the amendment would increase the homestead exemption from $50,000 to $75,000. However, only homes appraised with a value of $100,000 or more would reap the benefits of the additional $25,000 exemption. Those homes with assessment values between $100,000 and $125,000 would be exempt from taxation altogether.
The Florida legislature gave this measure a green light in 2017, which needs 60 percent of the vote to go through. Some county and municipal leaders are concerned that only some Florida residents would benefit from it.
Florida law provides that a judgment holder cannot force you to sell your homestead to pay off the judgment if someone sues you and obtains one against you. This protection from judgment creditors also carries over to certain heirs who might inherit your homestead after you die, including your spouse, children, siblings, nieces, and nephews. Unfortunately, any judgments specific to the property, such as foreclosures, past due association fees, and contractors’ liens, will trump homestead protection.
Death, Descent, and Distribution
The third and probably most confusing concept with regard to Florida homesteads is the restriction that Florida law places on who can receive your Florida homestead when you die.
The answer depends on whether you were married at the time of your death and whether minor children survived you. If you are not survived by a spouse or any minor children, you can leave the homestead to whomever you please. You can disinherit one adult child in favor of another or disinherit your adult children entirely in favor of a sibling or a friend.
Married with a minor child
If you are survived by a minor child and you're married, and if your homestead is titled in joint names with your spouse, you can leave your protected homestead to your spouse through rights of survivorship.
Single with a minor child
But what if you're a single parent and the homestead is titled in your name solely? A law went into effect on Oct. 1, 2010, allowing a single parent of a minor child to establish a special type of irrevocable trust for the minor child's benefit until an age selected by the parent.
This avoids the need to set up a guardianship for the minor, and it gives the parent control over when and how the child will inherit the homestead. But this special type of trust must be irrevocable and should only be established with the help of an estate planning attorney. Irrevocable means that after you form it, you can't legally undo it.
Married with spouse as sole survivor
What happens if you are survived by a spouse? Then—at least up until October 1, 2010—if you did not leave your homestead to your spouse outright and without any strings attached, she would automatically receive what is known as a "life estate" in the homestead. While your surviving spouse would have the right to live in the property for her remaining lifetime, she would also have to pay all the property taxes and the insurance necessary to maintain the residence.
Married with adult children
If you are survived by a spouse and you have adult children, they would receive the estate in equal shares after your spouse dies, if the life estate applies. If your spouse has elected to live in the property for the remainder of her life, she couldn't force the children to sell the property, but your children couldn't force her to sell it either.
Effective October 1, 2010, the surviving spouse who is initially stuck with a life estate in the homestead can elect to divide the property so that she will receive one-half and the children of the deceased spouse will equally divide the other half. She must make this election within a limited period of time after the deceased spouse's death, however.
So, yes, Florida homestead laws are tricky and multilayered. If you have minor children or are considering using your second home in Florida as your primary, permanent residence, make it a point to sit down with a Florida attorney to ensure that you've planned appropriately.