Many out-of-state residents move to Florida to seize advantage of the state’s solid homestead protection laws. To preserve their eligibility for homestead exemption, Florida residents must pay attention to the legal restrictions involved in the process.
Is homestead transferable in Florida? Read on to find out.
Florida Homestead Exemption – As Provided by Law
Article X of the Florida Constitution protects the homestead rights of all legal residents in the state. Upon the original owner’s death, Section 4 (b) specifies that the homestead exemption “shall inure to the surviving spouse or heirs of the owner.”
Section 4 (c) of Article X expressly states that “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 same section adds that “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.”
Accordingly, “if the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.”
Is Homestead Transferable in Florida? – The Verdict
Even though homestead property is transferable in Florida, state law has strict requirements for this type of transfer. If the property’s owner is survived by a spouse or any minor children, the homestead must not be transferred to any other persons in a will or trust.
If the owner of the homestead has no minor children, it is possible to transfer the property to his or her spouse only. While directing the transfer through a last will is the standard option, it is possible to transfer it through a trust to avoid probate.
If the owner of the homestead has neither a surviving spouse nor minor children, the title of the property can be transferred to anyone.
Is Homestead Transferable in Florida? – Taking a Closer Look
The first step to determining how to transfer a homestead in Florida is to consult with an expert estate planning attorney.
Married homestead owners in Florida can only transfer the property to their spouses. If the spouse voluntarily decides to waive his or her homestead rights, it is possible to draft and sign a waiver with specific language.
Without a waiver with explicit language, the spouse has the remainder of the property. As long as the surviving spouse remains living in the property as his or her primary residence, the homestead is protected.
After the surviving wife’s passing, the couple’s children will inherit the homestead through a will or intestacy court (if there is no will).
Not directing the transfer of a homestead using a trust or other beneficiary designations may result in complex disputes for blended families. If the owner of a homestead dies with children from another marriage, the surviving spouse will inherit the property alone.
To preserve the rights of children from another marriage, the owner of a homestead can set up a trust to ensure all parties will receive their fair share of the property.