What Is Homestead Protection in Probate Law?

Under Florida law, when a loved one passes away, their primary place of residence (provided that it meets the necessary criteria to enjoy homestead protection) is a non-probate asset. This means that, once the probate court determines a property to be a protected  homestead, the property will pass outside of the probate process and will not be considered an estate asset. Instead, this residence is subject to homestead protections that prevent it from being sold to pay the deceased person’s debts (there are exceptions). After the owner’s death, the homestead protection from forced sale by creditors passes to the surviving spouse and heirs of the owner. If a deceased homestead owner directs in their will that a homestead property be sold post-death, the property is not protected from creditor’s claims upon their death. 

What qualifies as a homestead property?

Florida law defines a homestead as your primary place of residence. Your homestead must be within the state of Florida to be eligible for protection and you must be a permanent resident of Florida. If you own more than one home in the state, only one of the properties can be declared as your homestead. Within municipalities, homesteads are limited to one-half acre, but outside municipalities, up to 160 contiguous acres can be protected. 

What is homestead protection?

There are three layers of homestead protection in Florida that are separate and apart from the concept of homestead related to property tax savings. 

The first layer of protection restricts a living homestead owner’s right to transfer a homestead property during their life while married. A married homestead property owner acting alone may only transfer the property to their spouse. A transfer (e.g., sale or mortgage) of a homestead property to someone other than the married owner’s spouse requires the spouse’s joinder in the transfer. If a married homestead owner violates this restriction during their life, it may need to be addressed upon their death.

The second layer of protection restricts the owner’s right to dispose of homestead property at their death. If a homestead owner is survived by a spouse or minor children, the owner cannot devise or gift the homestead property. However, if the homestead owner is married and has no minor children, the property can be devised or gifted to the owner’s spouse only. 

The third layer of protection prevents the forced sale of the homestead property by most creditors. This protection is discussed in more detail, below.

What is homestead creditor protection?

Homestead creditor protection is guaranteed by Article X, Section 4 of the Florida Constitution, which prohibits the forced sale of a homestead property and protects the property from creditors’ liens, with some exceptions. The protection offered to homesteads under Florida law allows an unlimited amount of value to be kept safe from creditors. 

This protection generally continues after a homestead owner passes away, unless the property is left to someone who is not entitled to inherit the protection, or unless there is a will that requires the homestead to be sold. The homestead exemption passes to the homestead owner’s heirs or surviving spouse upon death, so if real estate qualifies as a homestead during your life, homestead creditor protection will continue to keep the homestead out of reach creditors when the property is transferred to qualified individuals.

What does homestead protect you from?

Homestead protects you from the forced sale of your home by most judgment creditors. However, there are exceptions to homestead creditor protection:

  • Debts related to the purchase of a homestead 
  • Debts related to improvements and repairs to the homestead
  • Liens from mortgages and homeowners/condominium association dues
  • Property taxes, state taxes and IRS tax liens

Creditors that fall into one of these exceptions can enforce their debts against homestead property.

What is necessary to protect homestead property during the probate process?

To protect homestead property during a probate administration, it is necessary to file a petition to determine homestead and provide formal notice of the petition to creditors and any interested persons in the probate. 

Under Florida Probate Rule 5.405, an interested person may file a petition to determine protected homestead real property owned by the deceased. The petition must include the following information:

  • The date of death
  • The county where the deceased was domiciled at the time of their death
  • The names of the deceased’s surviving spouse and descendants 
  • A statement as to whether the deceased had any minor children and, if so, the names and year of birth of each minor
  • A legal description of the potential homestead property 
  • any other facts in support of the petition

For probate purposes, homestead status is decided at the death of the owner. The protection remains whether the beneficiaries keep the home or sell it. Therefore, if beneficiaries sell a homestead property because the beneficiaries’ homestead rights attached prior to the sale, the proceeds of that sale are also protected from creditor claims by any of the deceased person’s creditors.

What are the rules for homestead protection?

The rules for homestead protection require certain criteria to be met:

  • The property must be owned by a natural person
  • The owner must have made, or intended to make the property their permanent residence or that of their family
  • Your homestead property must meet size and contiguity requirements

Natural Person

To qualify for homestead protection, property generally must be titled to an individual, although homes owned by certain types of trusts may also qualify. This means that if you own your home in the name of an LLC or corporation, the property cannot qualify as protected homestead

Permanent Resident

To receive homestead protection for your home, you must be a permanent and legal Florida resident. This requires you to prove that you have made or intended to make the property your permanent residence or that of your family.

Size and Contiguity Requirements

Under Florida law, homestead protection is limited to one-half acre within a municipality and 160 acres outside a municipality. This does not mean larger properties cannot qualify as a homestead, but any additional acreage over the acreage limit will not be protected. Additionally, the property must be contiguous, which means it must be connected. 

How do you qualify for homestead protection?

To qualify for homestead protection, you must:

  • Be a natural person
  • Be a permanent resident of Florida
  • Own the property
  • Comply with size and contiguity rules

When do I need a probate attorney?

When a loved one passes away, you should contact a probate attorney to discuss your options when it comes to the homestead property. Florida’s homestead laws offer significant financial protections to the heirs or beneficiaries of an estate. An experienced estate lawyer can ensure the necessary actions are taken for you to benefit from homestead creditor protection.

Read More

What Is Probate Administration in Florida?

A Guide to Probate Problems Between Siblings

What Is an Affidavit of Heirs?

What Is a Petition to Sell Real Property?

About RMO Lawyers, LLP

RMO LLP provides personal and efficient inheritance dispute services to individual and institutional clients. The firm’s attorneys focus on probate litigation involving contested trust, estate, probate, and conservatorship matters. Serving California and Texas, with offices in Los Angeles, Pasadena, Orange County, San Diego, Fresno, the Bay Area, Dallas, and Houston. For more information, please visit https://rmolawyers.com/.

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About the Author

Scott Rahn, Founding Partner

Scott Rahn resolves contests, disputes and litigation related to trusts, estates and conservatorships, creating a welcome peace of mind for clients. He represents heirs, beneficiaries, trustees and executors. He utilizes his experience to develop and implement strategies that swiftly and efficiently address the financial issues, fiduciary duties and emotional complexities underlying trust contests, estates conflicts and probate litigation.

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