Homestead Protection: Can You Lose It in Probate?
A person’s home (homestead) is often the most important asset in their estate plan because of the monetary and sentimental value that is inherent in a person’s main residence. Florida has special rules that govern a person’s primary residence, known as homestead property. Unless a creditor is the IRS, a mortgagee, or a laborer that performed work on the home, a homestead property is safe from creditors’ claims. Essentially, the homestead is exempt from a forced sale of the property unless there is a special creditor.
To qualify for homestead protection, a person must be a permanent resident of Florida, and the homestead must be that person’s primary place of residence, among other rules. This means that second homes and investment properties are ineligible for such protection. However, there is no monetary cap associated with the exemption, so a Florida resident that invests millions of dollars into their primary residence will receive full protection.
The homestead exemption has significant implications in the probate process. In Florida, the homestead protection inures to the surviving spouse and the heirs of the decedent owner. Fla. Const. art. X, §4 (b). “Heirs” means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent. Florida law actually restricts the devise of the homestead if the decedent is survived by a spouse or minor children, but if the homestead is actually devised to someone other than a surviving spouse or an “heir” of the decedent (whether because the decedent did not have any minor children or surviving spouse, or the surviving spouse waived his or her right of homestead in a marital settlement agreement), the homestead protections will be lost and it will not be protected from the claims of creditors in a probate proceeding.
If you have questions or concerns regarding the descent of your homestead and whether it will be protected from the claims of creditors in a probate estate, do not hesitate to contact the experienced attorneys of Chepenik Trushin LLP, Bart Chepenik, JD LL M, 305-613-3548 or Brad Trushin, 305-981-8889, who are ready, willing, and able to assist you with your estate planning, probate administration, guardianship, Medicaid planning and probate litigation needs.