Articles Posted in Homestead

Florida’s homestead protections are renown throughout the country for the great homestead protection laws that protect state residents.  These laws are found in Florida’s Constitution and offer key protection in three different ways.  The state constitution offers protection from creditors, tax exemptions, and transfer restrictions to protect spouses.

Homestead Protection From Creditors

Article X, Section 4 offers Florida exempts the homestead property from creditors.  This means that a creditor cannot force the sale of a homestead to satisfy a judgment.  Florida courts have graciously expanded the meaning of homestead to include a house, condominium, a manufactured home, and mobile homes.   The Florida Constitution defines homestead as one’s principal place of residence including up to one-half acre within a municipality and up to 160 contiguous acres outside a municipality.

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Florida offers some of the strongest homestead protection laws in all of the United States.  When a resident of Florida dies, the law protects the surviving spouse and minor children from becoming homeless by preventing the decedent from giving his or her estate to someone else through a Will or Trust.  However, a recent court ruling may have weakened the homestead law.

These laws provided by the Florida Constitution are strong, but there are some limitations by recent court decisions.  A Florida Probate Court created a limitation in the case of Marger v. De Rosa, 57 So. 3d 866, 866 (Fla. Dist. Ct. App. 2011) where a mother and son owned a home as joint tenants with rights of survivorship.   The son, Mr. De Rosa, had two minor children when he purchased the home with his mother.  A few years later he died with no surviving spouse, two minor children, and an adult child.
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Florida Homestead for Non U.S. Citizens is possible for two types of Florida Homestead exemptions.

The first homestead exemption is tax based.

If you live in your home  and you or your spouse or dependent child is a permanent resident of the state of Florida on January 1s you are entitled to file for a reduction in property taxes.

In Florida, the primary residence is often protected by the Florida constitutional homestead protections.

While in many other states, a persons homestead is not protected from creditors and can be lost to claims for Medicaid reimbursement, this is not the case in Florida. The only creditors that can make a claim against the home are those that do something with the home. These may include a roofer or the bank which financed the home.

If you or a spouse needs nursing home case, selling the home can place that asset or the money received from the sale at risk to creditors as well as Medicaid eligibility. There are several methods of avoiding probate on your homestead. Choosing the right method is not an easy decision without knowing your facts and circumstances.

florida-case-law.jpgFlorida is a rather unique state in rights associated with homestead exemptions from forced sale. In a nutshell, it is nearly impossible for creditors to force the sale of a homestead (a situation famously highlighted by OJ Simpson, who purchased a large estate in Florida in part to avoid creditors).

Florida’s homestead exemption also protects spouses and children of decedents: a spouse cannot transfer the property by will if survived by a spouse or minor child. While this rule often plays a positive role for families of decedents, certain cases show potential perils. Those cases primarily involve “blended families”; i.e., situations where a person late in life remarries. Florida’s homestead exemption seems to presume that the surviving spouse will also be a biological parent of the surviving children, but that is not always the case. Blended families can be a lightening rod of litigation, as highlighted by the case of Aronson-v-Aronson.pdf.

This case is the third time the parties have been in the appellate court. These parties have been fighting for over a decade. Here’s the story: a Mr. Aronson died after creating a revocable trust. Under the terms of the trust, his wife Doreen would take a life estate in the Key Biscayne condo the two of them shared. After that, the condo would go to Mr. Aronson’s sons. However, in the time between creating the trust and dying, Mr. Aronson deeded the same condo directly to Doreen.

For Sale Sign.jpgIf your last parent in Florida has passed away leaving their Jacksonville home, how do you proceed if you want to sell the house? A Florida deed transfers title to real property from one person(s) to another. Generally before anyone will purchase a property, they will require clear title to the real property.

Whether your surviving parent died with a Florida Will or without a Will (intestate), if you want to sell the home, title to the property will need to be transferred to your parents to the named beneficiary or heir. A Florida probate proceeding is necessary to transfer title to the real property in such a way as to establish clear title. Florida statutes require that a Jacksonville Probate Lawyer or a Florida Probate Lawyer is used to represent the Personal Representative or Estate when there is more than one heir in an estate.

homestead- House.jpgAtlantic Beach, Neptune Beach and Jacksonville Beach homeowners may know that the Florida Homestead Protection mandated by the Florida Constitution, is afforded to many residents.

This homestead protection protects one’s home from the claims of most creditors. Further, if one dies leaving minor children, then the home cannot be devised (giving property away in one’s will) or sold.

As with everything in the law, the homestead protection is not black or white. There are many interpretations based on a case to case basis. In a recent Florida case, the court held that a house owned by a decedent and his mother as joint tenants with right of survivorship was not homestead property for purposes of the administration of decedent’s estate.

condos images.jpgAs a Jacksonville Attorney at a Florida Estate Planning Firm, I have seen many issues concerning homestead protection in both probate matters and in estate planning. When you occupy a home in Florida as your main residence, this is called your homestead property. Notwithstanding some exceptions, the Florida Constitution protects the homestead from forced sale by creditors. If the owner of a homestead dies, the creditor protection of the home (from the decedent’s creditors) continues for the spouse or family members who inherit the homestead. If the home becomes the homestead of the spouse or other family members then they shall also enjoy the same creditor protection from their creditors.

A Florida condominium was transferred to a Florida revocable trust. Upon the death of the first, the Florida Revocable Trust created a marital trust for the spouse, with the remainder to sons from a previous marriage. A few months after the condo was titled to the trust, the same condo was deeded directly to the spouse. A lawsuit ensued as to who owned the condo, the trust or the 2nd wife.

The sons won an initial victory, ensuring they would receive the condo upon the surviving spouse’s death. The surviving spouse counter-sued for reimbursement of all condo related expenses paid with her own funds, and won a money judgment against the sons. The spouse wanted the sons to transfer a percentage of the condo interest to her, and the sons wanted the trust to sell the condo to obtain money to pay the judgment against them. The sons lost.

Most Florida Estate Planning Lawyer deal with planning for the unexpected and protecting your assets for those after we are gone. Part of this protection and planning often involves the use of the Florida Homestead. The Homestead Exemption is not exclusive to Florida. A recent case, a New York Representative is accused of claiming a Homestead exemption for a home located in Washington, D.C.

The homestead exemption varies from location to location, but it generally applies to one’s primary home. Recently government officials have noted that even though this exemption was established in the late 1800s, still only few today take advantage of it.

Tax officials in several locations around the country, including Florida, have begun to crackdown on the number fraudulent claims that are being reported every year. The New York Times reported that Jennifer Frastai, City manager of Hallandale Florida, has begun an intensive effort to stop fraudulent homestead claims.

twohomes.jpgFlorida homestead is a constitutional protection which makes the homestead of a decedent exempt from the claims of creditors. Florida Homestead can apply to condominiums, however, a Florida District Court recently affirmed a lower court decision which held that decedent’s contractual interest in a condominium (which was owned by decedent at the time of her death) was not homestead property, and therefore, not protected from claims of creditors.

The decedent had purchased a life estate in a condominium from the condominium association and then entered into a repurchase agreement. The repurchase agreement provided that upon the death of decedent the life estate would automatically terminate and fee simple title would be vested in the condominium association, which would then attempt to sell the condominium for the benefit of decedent’s heirs. Therefore, the condominium was not afforded homestead protection.

Considering the descendant did not have an interest at the time of death, I am not sure what this case was about. If her interest expired at death, there was nothing there to protect.

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