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It's The Law: Devising Homestead Can Be Tricky

Q: I am divorced and remarried. I want to leave our family home to the children of my previous marriage. A friend tells me that Florida has a lot of rules about how or who you can leave your home to when you die. Is that true?

A: Florida's homestead protections have many benefits, but also create many problems. Article X, Section 4 of Florida's Constitution protects homestead property from claims of creditors, except for taxes, mechanics liens and other liens attaching to the property with consent of the owner.

Homestead property is the primary residence of an owner or the owner's family. Under the constitution, it is limited to 1/2 acre within a city and 160 acres if outside of a city.

The public policy behind Florida's Constitutional protection is to protect homes so people have a place to live. Although the Constitution offers no protection in a mortgage foreclosure proceeding, it does protect the homestead from claims of other creditors and this protection even passes through bankruptcy. The exemption from creditor claims continues to the heirs of the owner, so that even after death the homestead is not subject to creditor claims as long as it passes to the owner's heirs.

Heirs are defined as those persons who would inherit an estate if the decedent did not have a will. Those persons are spouse, descendants of the decedent, decedent's parents and their descendants, and the decedent's grandparents and their descendants, in that general order. Public policy is to insure the home is protected from creditor claims as it passes to other members of the family.

Devise is direction for distribution of the property in the trust or will. To further the public policy, the Constitution also prohibits devise of the homestead if the owner is survived by a spouse or minor child, except that the homestead may be devised to the owner's spouse if there is no minor child. The intent is to keep the home in the family so they have a place to live. Assuming the married owner does not devise the homestead to his or her spouse, the spouse inherits a life estate. That means the spouse owns the property for his or her life. After the spouse's death, the property passes to the original owner's descendants (children and/or grandchildren).

If homestead cannot be devised, it passes directly to the heirs under the statute and does not even go through probate. On the other hand, if the owner is not married and does not have minor children, the owner may devise the homestead in any way that the owner deems appropriate. If the owner is not married and does not have minor children and devises the homestead to someone who is not an heir, the homestead losses its protection from creditors.

Florida statutes do provide one exemption from the limitations on homestead devise. At Section 732.702, the statutes provide for waiver of a spouse's homestead rights. A valid waiver must be in writing and, if signed by a Florida resident, must be signed in the presences of two signing witnesses. No disclosure of financial assets is required if the waiver is executed before marriage. The agreement does not even have to specifically reference homestead rights. Unless the waiver provides to the contrary, a waiver of "all rights" or similar language in the estate of a present or prospective spouse is a waiver of all rights to homestead.

The recent case of Taylor v. Taylor is illustrative. In that case, a couple had a prenuptial agreement which included the following language "All property which belongs to each of the above parties shall be, and shall forever remain, their personal estate... and said property shall remain forever free of claim by the other".

The husband died and the widow made a claim to the estate even though she was not included in the will. The trial court found the agreement ambiguous and relied on the widow's testimony that she did not intend to waive any of the rights she would have on her husband's death to award her a marital interest in his estate. The appellate court reversed, finding the language was equivalent to a statement that the widow waived "all rights" in her deceased husband's property or his estate under the statute.

Issues in the homestead arena can be complex and confusing. I urge you to discuss your situation with an experienced attorney before proceeding further.

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