A Guide to Florida Homestead Laws
The laws governing Florida homestead properties are some of the more complicated in the country. A lot of Florida residents get them confused. When is a Florida property considered to be considered a homestead so 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, 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 will 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. Assuming that your property meets all three of these criteria, Florida homestead laws also fall into three different categories: real estate taxes, creditor protection, and death, descent and distribution.
Homestead in Relation to 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.
Homestead in Relation to Creditor Protection
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.
Homestead in Relation to 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 you can and cannot leave your Florida homestead to when you die.
This will depend on whether you were married at the time of your death and whether you were survived by minor children. 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 in favor of a sibling or a friend.
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.
But what if you're a single parent and the homestead is titled in your sole name? A law went into effect on October 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.
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. Your children would receive the estate in equal shares after your spouse dies.
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. Your spouse 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 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 multi-layered. 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.