Homestead Issues

A Homestead is ___

The primary residence of a natural person, up to ½ acres of contiguous land within a municipality, and up to 160 acres outside a municipality.

Three requirements of a homestead property

1. Primary Residence

2. Natural person

3. Acreage requirements. (1/2 within a city) (160 outside a city)

A homestead must be established ____

before a lien is recorded to be protected from attachment.

Establishment of a homestead

All elements are met, no need to file because it’s automatic.

Abandonment of a homestead

question of fact, but the whole household must leave without intent to return.

3 homestead restrictions/protections

1. Forced Sale

2. Conveyance

3. Devise

Forced Sale

The Florida Constitution exempts homestead property from a forced sale by creditors… except for taxes, mortgages, and mechanics liens. This is because homestead protections inure to the benefit of the surviving spouse and heirs.

Homestead rights are _____ construed to _____.

liberally construed, to protect the family.

Conveyance

one spouse may not convey any interest in a homestead without joinder of the spouse. Transfer is ineffective and void. Any interest, includes mortgages.

Exception to Conveyance

A married owner may convey and individually-owned homestead to themselves and their spouse as a Tenancy by the Entirety without the use of a straw man.

Devise - Testamentary Gift - If the decedent is survived by a spouse or minor child ________.

the homestead is not subject to devise.

Devise - Testamentary Gift - If the decedent is survived by a spouse and no minor children ____.

The homestead may be devised 100% in fee simple to the surviving spouse.

Devise - Testamentary Gift - If the decedent is NOT survived by a spouse or any minor children ____.

May be devised to anyone with no restrictions.

Descent

If the homestead is improperly devised, or NOT devised, it descends in the same manner as other intestate property.

Exceptions to descent - if decedent is survived by a spouse and no descendants _____.

The homestead will descend to the spouse.

Exceptions to descent - if decedent is survived by a spouse and one or more descendants _____.

The spouse gets a life estate and descendants get a vested remained, per stirpes. OR spouse may elect a tenancy in common with the surviving descendants, per stirpes.