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Inheriting Homestead Property in Florida

Only certain people are qualified in inheriting homestead property in Florida. There are restrictions placed on the owner from using a will or trust to dispose or devise the homestead. The rules about inheriting Florida homestead property are complicated even for attorneys, and their application an be different depending on the little details of each specific situation. For this reason, I urge you not to rely on any articles on the internet on this topic. For many cases, that is just not going to be sufficient and can lead to serious issues. Consult an experienced attorney. We at the Law Offices of Albert Goodwin are here for you. You can send us an email at attorneyalbertgoodwin@gmail.com.

Homestead property in Florida is not a probate asset. For this reason, you don’t inherit homestead property through probate proceedings. Upon the homestead owner’s death, under some circumstances, it is possible that the homestead would immediately and automatically passes to the heirs. As mentioned, however, Florida laws provide for rules on who can inherit homestead property.

If the owner dies with a surviving spouse and one or more descendants, the surviving spouse has a life estate over the homestead property, and upon the surviving spouse’s death, the descendants inherit the homestead property, per stirpes. This means that the surviving spouse can only live in the property but cannot sell it without the consent of the descendants. The surviving spouse can also elect, within 6 months from the decedent’s death, to take ½ interest as tenant in common, while the rest of the descendants receive the remaining ½ interest. Florida Statute 732.401.

If there is no surviving spouse but there are descendants, the descendants inherit the entire homestead. If there are no descendants or surviving spouse, the entire property passes under Florida laws of intestacy if there is no will.

If the owner dies with a surviving spouse and at least a minor child, the owner cannot devise the property through trust or will to any other person. The surviving spouse gets a life estate, while the remainder goes to the descendants who were alive at the time of decedent’s death.

If the owner dies with a surviving spouse but no minor child, the owner can devise the remainder homestead property to any third person, subject to a life estate of the surviving spouse. The owner can also devise the entire homestead to the surviving spouse.

If the owner dies without a surviving spouse or minor child, the homestead can be devised to any third person. However, third persons who are not intestate heirs who receive the homestead through inheritance will not be entitled to the owner’s homestead protection.

Examples

Suppose that you and your spouse purchased a house in Florida under tenancy by the entirety, where you both lived in it as your primary residence. When you died, you were survived by your spouse, one adult child from a former relationship, and one minor child from your surviving spouse. Your adult child from a previous relationship claims a vested remainder over the property as a descendant. Is he correct? No. The property is under tenancy by the entirety, and upon your death, your wife automatically had full ownership over the property as the surviving spouse.

Let’s assume the same facts above, except that the property was solely owned by you prior to your marriage to your spouse. Upon your death, you were survived by your spouse, one adult child from a previous relationship, and one minor child with your surviving spouse. You had no will. Your adult child now claims a vested remainder over the property as a descendant. Is he correct? Yes, because upon your death, your spouse only had a life estate, with the remainder interest to be inherited by your children after your surviving spouse’s death. The surviving spouse, however, can elect to get, instead of a life estate, ½ of the property as tenant in common.

Suppose, however, that you were survived by your spouse and a child from a previous relationship who is now an adult. You were never close to the child, so you wrote a will giving your spouse a life estate over the home, and the remainder interest to your friend. When you died, your adult child now claims that the provision giving your friend the remainder interest is not valid because he has a vested interest over the remainder as a descendant. Is he correct? No. Since you were not survived by a minor child, you could devise the remainder interest of the house, provided that you left a life estate to your surviving spouse.

Laws regarding inheriting homestead property in Florida can be complex. For this reason, should you have any doubts, it is advisable to get counsel from an attorney to ensure you get correct legal advice.

Protection effects of inheriting homestead property in Florida

When you inherit homestead property in Florida with rights of an intestate heir, you enjoy the homestead protection of the original owner. In the example above, the surviving spouse or the children, when they inherit your homestead property, will enjoy the asset’s protection from creditors that you have enjoyed. If your surviving spouse or children decide to immediately sell the inherited homestead property, your creditors cannot claim a lien on the proceeds of the sale.

In reality, however, it’s more complicated. A title insurance company won’t insure the sale of the decedent’s homestead property if the decedent still has creditors with claims.

The title insurance company will request the surviving heirs to get court confirmation that the house is homestead property, exempt from creditors’ claims. In this case, even if the decedent did not leave any assets for probate, the surviving heirs are still required to open a probate case simply to get confirmation that the house is homestead property, in order for the title insurance to insure their sale of the property to a third party.

Inheriting homestead property in Florida is subject to strict rules. There are strict rules a homestead owner must observe in devising homestead property. It is important to know when a homestead owner can devise homestead property and when such devise is prohibited. When getting married in Florida, especially for second marriages, it is important to understand the effect of such marriage on previously-owned homestead property upon your death. Spouses can intelligently waive their rights to homestead property in pre-nuptial agreements.

Should you need legal representation or require a consultation regarding inheriting homestead property in Florida, we at the Law Offices of Albert Goodwin are here for you. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.