Florida homeowners may not realize the Florida Constitution imposes certain rights and restrictions on their homestead property. Although there are specific requirements for a home to be considered a person’s “homestead,” generally it is an owner’s permanent residence.
Property owner’s rights and restrictions regarding their homestead property can be divided into three categories:
- Creditor protection;
- Inheritance restrictions; and
- Property tax exemptions.
#1. CREDITOR PROTECTION
Creditor protection means that someone you owe money to cannot reach an asset to satisfy the debt. The equity in a homestead is protected from almost every creditor except for debts such as: 1) those related to the home, such as a mortgage or property tax debt and 2) federal tax debt. Homestead protection safeguards against many debts, such as those from credit cards, personal loans, business debts, and lawsuits. Creditors can obtain a judgment to garnish wages and levy bank accounts, but they generally cannot touch a person’s homestead property. Homestead status also protects the equity in the home from creditors in a bankruptcy proceeding for residents that live in Florida for at least 40 months.
#2. INHERITANCE RESTRICTIONS
The Florida Constitution and Florida Statutes place certain restrictions on who will inherit an owner’s homestead when the owner dies, even if it is contrary to the owner’s wishes found in their will. Here are some rules of thumb:
- If an owner is married with minor children, the owner does not get to choose who will inherit their property. The surviving spouse will automatically receive a life estate in the and the children have a future interest. Alternatively, the surviving spouse may elect to take the property as tenants in common with the children. (Note that if the homestead is owned by both spouses as tenants by the entireties the surviving spouse owns the property as a matter of law and this does not apply.)
- If an owner is married without minor children, the owner can only devise the homestead property to their spouse. If the owner does not make a complete gift of the homestead to their spouse, the default under Florida law is that the spouse gets the hone anyway outright if the owner has no children and if there are adult children then the spouse gets a life estate and adult children get a remainder. Once again, the spouse can elect to receive a fifty percent tenants in common interest instead of a life estate. Unless the couple has a premarital agreement, a homestead property owner cannot cut their spouse out of the rights to the property by simply gifting the property to someone else in a will.
- Here is an example: Jack and Jane got married without a premarital agreement. Neither of them have children. Jane moved into Jack’s homestead property in Coral Gables, FL, and the two use it as their primary home. Jack always knew he wanted to give his home to his childhood friend, so Jack put in his will “I wish for my best friend, Bobby, to receive my home when I die.” When Jane submits the will to probate after Jack dies, the judge will give the property to Jane instead of Bobby because Florida’s homestead law will not allow Jack to give his home to anyone other than his surviving spouse. Therefore, Jane will end up with the homestead property, even though Jack wanted to give it to his best friend.
- If an owner is not married and does not have minor children, there are no restrictions and the owner may give their homestead property to whomever they please.
#3. PROPERTY TAX
A property owner may be entitled to two tax breaks for their homestead property.
Homestead properties receive a $25,000 reduction in the property’s taxable value. Property taxes are calculated based on the taxable value of the home. By reducing the home’s value by $25,000, an owner will in turn pay less in property taxes.
The second tax break is known as the “Save Our Homes” cap. Every year, the taxable value or “assessment” of the property can be raised by the property appraiser, which also increases the amount of taxes due. The “Save Our Homes” cap limits any increase in a homestead’s taxable value to 3% of its existing value. This means that the property appraiser cannot increase the value of your homestead property by more than 3% every year.
Homestead protection may be very confusing, but a good understanding is important if you want to protect your home from creditors and properly account for it in your testamentary documents. Thankfully, an experienced attorney at Lavender Greenberg can help you understand how to handle your homestead property in your estate plan.
