Restrictions on Conveying Homestead Property
Do you know the restrictions on conveying (transferring) your homestead property in your Last Will and Testament when you have a spouse and/or minor child?
Homestead property is property that is not only owned but occupied by an individual. Only Florida residents can obtain a Florida homestead and receive the tax exemption benefit that comes with it. Conveyance of a homestead property is the legal process of transferring property from one owner to another at the time of a loved one’s death.
What you may not realize is that are restrictions on who can receive and how transfers are made. The Florida Constitution and Florida Statutes (Article X, Section 4. Homestead; exemptions.—) address how a homestead may be distributed upon an owner’s death and the consequences of an invalid devise of the homestead. Specifically stating:
- (b) These exemptions shall inure to the surviving spouse or heirs of the owner.
- (c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.
In simple terms, homestead would be transferred to a minor child or children first, even if there is a spouse. If there are no children, the homestead ownership would go to the spouse. Also, a married owner cannot mortgage, sell or gift the homestead to anyone other than the spouse or to themselves and the spouse, unless the spouse signs the deed or mortgage.
Florida law restricts the ability of a homestead owner to devise the homestead if survived by a spouse or minor children, and it also imposes certain restrictions on lifetime alienation. In Florida, it is not considered a transfer of property but a change of ownership. The statute also includes an exception for property that is transferred to someone who was legally or naturally dependent on the deceased owner and who is living on the property. However, if the property is inherited by adult children or other beneficiaries, the property will generally be reassessed at its full just value the next tax year.
The Florida Statutes and Florida Probate Codes are in place to not only restrict but to also protect families. This includes tax exemptions, creditor exemptions and restrictions (ex. no forced sale) on devise and transfer when the owner is survived by a spouse or minor descendants. If the decedent is not married or the spouse has waived rights and if the decedent has no children, they are free to transfer and devise the property anyway they want.
Litigation of a transfer conveying homestead property often arises when no will exists, not knowing if the decedent owned the homestead, if a spouse signed or waived their rights away, when spouses are separated but not divorced, if the homestead was abandoned, or was already properly transferred when the owner was alive.
To learn more about how the property descends upon the owner death or what happens to a homestead if it is devised or transferred in violation of the restrictions, click here. If you have questions regarding homestead property, wills, or estate planning seek an experienced will, trust and probate attorney to protect you and your family’s interests.Resources:
Florida Statute – Estates & Trust – Title XLII