Understanding Florida Homestead Exemption in Estate Planning

Florida's homestead exemption is one of the most generous in the nation, providing substantial benefits to homeowners. However, it also creates unique challenges for estate planning that every Florida property owner should understand.

What is Florida Homestead?

Florida homestead protection has constitutional roots, providing three main benefits:

1. Creditor Protection: Your homestead is protected from most creditors, with limited exceptions for mortgages, property taxes, and liens for work performed on the property.

2. Property Tax Benefits: The Save Our Homes cap limits annual increases in your property's assessed value for tax purposes to 3% or the Consumer Price Index, whichever is lower.

3. Forced Heir Provisions: Florida's constitution restricts how you can transfer your homestead at death if you have a surviving spouse or minor children.

Estate Planning Challenges

The forced heir provisions create the most significant estate planning challenges. Under Florida law:

• If you are married, you cannot devise your homestead to anyone other than your surviving spouse (though the spouse can waive this right)
• If you have minor children, additional restrictions apply
• A surviving spouse has the right to either a life estate or 50% ownership as a tenant in common

  These restrictions mean that a simple will leaving your home to your children may be ineffective if your spouse survives you. Proper planning is essential.

  Planning Strategies

  Several strategies can help you achieve your goals while complying with Florida homestead law:

  Joint Ownership: Owning property as tenants by the entireties with your spouse provides automatic survivorship outside of probate.

  Spousal Waiver: Your spouse can waive homestead rights in a properly drafted prenuptial or postnuptial agreement.

  Lady Bird Deed: An enhanced life estate deed allows you to retain control during your lifetime while passing the property outside of probate at death.

  Living Trust: A properly structured revocable living trust can hold title to your homestead while still preserving creditor protection and tax benefits.

  Working with an Attorney

  Given the complexity of Florida homestead law and its interaction with your estate plan, working with an experienced Florida estate planning attorney is essential. A qualified attorney can:

  • Evaluate your specific situation
  • Explain how homestead affects your goals
  • Draft documents that work within Florida law
  • Ensure your spouse's rights are properly addressed
  • Coordinate homestead planning with the rest of your estate plan

    If you own property in Florida, contact our office to discuss how homestead law affects your estate planning.