Many Florida residents co-own property with other joint owners. Different types of joint ownership result in distinct legal consequences after one of the co-owners dies. Do both owners have to apply for homestead exemption in Florida? Read on to find out.
Florida Homestead Exemption – Understanding the Concept
The term “homestead” refers to one’s primary residence. The Florida Constitution has solid provisions to protect homestead rights within state jurisdiction.
Section 4 (a) of Article X provides that a homestead “shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty.”
Section 4 (b) expressly states that “these exemptions shall inure to the surviving spouse or heirs of the owner.”
Do Both Owners Have to Apply for Homestead Exemption in Florida? – A Closer Insight
The spouse who holds the title of the property is responsible for applying for homestead exemption. Whether the house is owned through joint ownership with rights of survivorship, tenancy by the entirety, or another ownership type, Florida law preserves the rights of the owner’s spouse.
To preserve the homestead status of a property, the owner must meet certain requirements that determine who can own the property.
Under Florida law, only the spouse and minor children of a homestead owner can inherit the property. The State Constitution restricts owners from selling, mortgaging, transferring, or gifting a homestead to protect the family’s rights to reside in the property.
If the owner of a homestead is married, it is not possible to sell, mortgage, gift, or transfer the property without the spouse’s consent. Unless the spouse explicitly waives the right to a homestead using a signed statement, he or she will inherit the property.
No matter whether the spouse has legal ownership of the property, state laws protect the surviving spouse’s equitable interest in the homestead after the owner’s passing. To sell, mortgage, gift, or transfer the property, the owner’s spouse must provide written consent.
If the owner is married and has minor children, it is not possible to transfer the homestead to anyone else outside the family upon death.
When the owner of the homestead dies, the ownership of the property automatically vests the surviving spouse and descendants. In such cases, the surviving spouse can opt for a life estate in the homestead, allowing him or her to remain living on the property until death.
Another option is electing half interest in the homestead while the owner’s descendants inherit the other half.
To avoid some restrictions and ensure your surviving spouse has sufficient flexibility in estate planning, you can hold the title of a homestead through tenancy by the entirety or joint tenancy with rights of survivorship.
These types of joint ownership allow you to transfer the homestead to your spouse upon death outside of probate.