Florida Homestead: Three Tricky Issues To Watch

By Phillip B. Rarick, Esq., Miami Probate Attorney

1. Failure To Identify Decedent’s Homestead

In order for real property to be subject to Florida homestead benefits (1) the decedent must be domiciled in Florida; (2) the property must be owned by the decedent or the decedent’s revocable trust if the decedent was the grantor; (3) the property must be the decedent’s primary residence; and (4) the property is limited in size to one-half acre of contiguous land in a municipality or 160 contiguous acres outside a municipality. Art. X, §4(a), Fla. Const.

Note: Designating property ownership as Tenancy by the Entireties alone is not sufficient to grant homestead status.

2. Devising the Decedent’s Homestead When Survived by a Spouse or Minor Child

One of the historical reasons for homestead is to protect the surviving spouse or minor children. Rohan Kelley, the preeminent Florida probate scholar, writes somewhat tongue-in-cheek, “Florida homestead was the manifestation of the desperate attempt by Floridians to repel the invasion of the Yankee carpetbaggers at the conclusion of the War of Northern Aggression.”

Homestead cannot be devised if the decedent is survived by a spouse or minor child. Art. 10, § 4, FL Constitution. If the decedent died intestate, the surviving spouse has a life estate in the homestead, with a vested remainder to the lineal descendants in being at the time of the decedent’s death, per stirpes.

Note: New legislative changes to F.S. §732.401 allow the surviving spouse to opt out of the life estate, and instead elect to take a 50% tenancy-in-common interest in the property. This election to opt out must be filed within 6 months of decedent’s death. See A Life Estate The Spouse Can’t Afford

3. PR Selling the Decedent’s Homestead

The Personal Representative who is not the sole heir or devisee does not have authority to sell the homestead. A contract for sale must be between the buyers and the homestead beneficiaries; not just between the buyer and the Personal Representative. In Re Estate of Feldstein, 292 So. 2d 404 (Fla 3d DCA 1974).