BEWARE OF FLORIDA HOMESTEAD BEFORE YOU PREPARE YOUR LAST WILL AND TESTAMENT

BEWARE OF FLORIDA HOMESTEAD

BEFORE YOU PREPARE YOUR LAST WILL AND TESTAMENT

Article X. Section 4(c) of the Florida Constitution imposes a restriction on devising the Homestead of an individual if a minor child or a spouse survives them. However, if there are no minor children, the homestead can be devised to the surviving spouse.[1] If the homestead devise is prohibited, then the homestead will descends by operation of Florida law. Section 731.201(10) of the Florida Statutes defines “devise” as a testamentary disposition of real or personal property by will or a trust.

Section 732.401 of the Florida Statutes states that “[i]f not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes.” This means that the spouse is going to be able to live in the house until her death, and the children are going to have complete ownership of the house once the surviving spouse passes away. Section 732.401 also allows the surviving spouse to make an election to take an undivided one-half interest in the homestead as a tenant in common with the children of the deceased spouse.

What is the takeaway from all of this; before you prepare your estate plan, whether you will be preparing a will or a trust, speak with a knowledgeable attorney in the area to better guide you through the complicated homestead laws. Many times we see the fact pattern where someone prepares a Last Will and Testament with the intention to leave everything they own to their kids, but fail to recognize that there are safeguards in place to protect the surviving spouse. In Florida, a surviving spouse is entitled to thirty percent (30%) of the elective share of the deceased spouse.[2] As previously mentioned, the spouse prepares a will and leaves the house to the children because he is leaving other property to the spouse, but fails to realize that Florida homestead laws imposes a restriction if he or she is married at the time. The end result is that there will be unintended consequences as far of the testamentary intent of the deceased spouse. Many of these problems can be resolved with careful planning.

One way to plan around homestead is for the surviving spouse to waive her homestead right through some kind of marital agreement, whether before or during the marriage. A surviving spouse could also potentially disclaim her interest in the homestead, if the homestead was properly devised to the surviving spouse. Finally, if the homestead is titled as tenants by the entirety with the husband and the wife, then homestead will pass by operation of law to the surviving spouse regardless of an improper devise. According to Section 732.401(5), the descent of homestead rules do not apply to tenancy by the entirety or joint tenancy with right of survivorship.

Many people attempt to prepare testamentary documents by themselves or use some online website to prepare their legal documents. Always err on the side of caution, as not following the correct formalities or abiding by Florida law can cause dire consequences. The information provided herein is meant to be used for informational purposes, and is not to be taken as legal advice or create an attorney-client relationship, always consult an attorney regarding your particular situation.

If you have any questions on the topic or just want to talk to use, feel free to call or email us to set up a free consultation.

 

 

[1] Art. X.. § 4(c), Fla. Const.

[2] Fla. Stat. § 732.2065.