The Florida Homestead Exemption & Your Estate Plan

Florida law provides special protection from creditor claims for a person’s “homestead,” i.e., their primary residence. These protections even extend beyond death. That is to say, when a Florida resident dies, they can pass their primary residence on to their heirs at law–usually a spouse or child–and the decedent’s creditors cannot touch the property.

Appeals Court: Homestead Order Did Not “Extinguish” Sons’ Life Estate in Mother’s Property

It is important to be aware of the homestead rule when making an estate plan. For instance, if you have a spouse or minor child, the homestead rule grants them certain rights to your homestead even if your will or trust says otherwise. And while the homestead rule does not require you to leave your house to any adult children, it can still complicate the administration of your future estate.

Here is a recent Florida court case on point. In Mullins v. Mullins, three siblings went to court over what to do about their late mother’s house. The mother died and left a will, which said her two sons–Robert and Kenneth–could continue to live in the house for as long as they wished, provided they paid the property taxes and other expenses. In legal terms, the mother gave her sons a “life estate” in the property.

Around the time of the mother’s death, Kenneth moved out of the house. Kenneth and his sister Carla later sued Robert, claiming their brother’s actions “forced [Kenneth] to vacate the property.” The lawsuit asked a judge to force a sale of the house, with the proceeds divided equally among the three siblings.

Robert opposed this move, arguing their mother’s will gave him a valid life estate in the property. Kenneth and Carla responded by pointing to an order previously issued by a judge confirming the homestead exemption applied to the property. Such homestead orders are typically necessary to clear title to a property so it can be sold or mortgaged. Critically, the homestead order issued in this case did not mention the mother’s will or the life estate.

The Florida Fifth District Court of Appeal, reversing a trial judge’s prior ruling, said that did not matter. The mother’s will still controlled. All of the siblings agreed the will created a life estate for Robert and Kenneth. The homestead order did not change this; it only confirmed the property was still protected by the homestead exemption. As the appeals court explained, the homestead order “did not create new rights, but rather explained or clarified the rights that already existed by operation of law.”

Speak with a Florida Estate Planning Lawyer Today

The homestead exemption is just one of many Florida-specific laws you need to consider as part of the overall estate planning process. A qualified Fort Myers estate planning attorney can provide you with valuable advice and assistance. Contact the Kuhn Law Firm, P.A., at 239-333-4529 today to schedule a free confidential consultation with a member of our estate planning team today.

Source:

5dca.org/content/download/526765/5852394/file/181672_1260_06072019_08253237_i.pdf

https://www.kuhnlegal.com/how-bankruptcy-can-affect-your-florida-probate-estate/