Florida Homestead Protection of Spouse and Minor Children

In Florida, a person's homestead is their principal place of residence and as homestead, the property has certain benefits and protections. These include: (1) exemption for creditor claims; (2) exemption from certain real estate taxes; and (3) protection of spouse and minor children. Prior blogs on this site have addressed the first two benefits listed; this blog will address the third.

When a person owns a homestead and dies leaving a spouse or minor children, there are limitations on how the homestead can be devised in the decedent's Will or Trust. If the decedent has a spouse but no minor children, the decedent can devise the homestead without limitation to the spouse. However, the decedent cannot devise the homestead to someone other than the spouse. By example, if Bob is married to Sue and they have no minor children, then Bob can devise the homestead to Sue but not to his cousin, Louie.

Similarly, if the decedent has no spouse but does have minor children, then the decedent can only devise the homestead to the children. So if Bob has a minor child, Nancy, but isn't married, then Bob can devise the homestead to Nancy but not to his cousin, Louie.

If the decedent has a spouse and minor children, the decedent can only devise the homestead to the spouse for life with a vested remainder to the children. If the decedent's Will provides other than this, then the Will provisions will not be upheld. So if Bob is married to Sue and has a minor child, Nancy, then Bob can devise the homestead to Sue for her lifetime but the remainder can only go to Nancy. Bob cannot devise the house to Sue outright nor can he devise the remainder to his cousin, Louie.

These limitations on the devise of a homestead are imposed by Florida law. As such, there is little way to get around them. About the only applicable exception is if the married parties have a pre-nuptial agreement where one spouse waives all entitlement to homestead protection. In that case, the other spouse may devise the homestead without regard to his spouse. However, this would not get around the rights which minor children have in and to the homestead.

Consider the following example involving a Pre-Nuptial Agreement. Bob owns a homestead, is married to Sue, they have no children, and they have a Pre-Nuptial Agreement wherein Sue has waived her rights to homestead. Bob can prepare a Will which leaves the homestead to someone other than Sue because the homestead rights have been waived. However, in this same example, if Bob has a minor child, Nancy, then the Pre-Nuptial Agreement does not impact Nancy's rights as a surviving minor child.

The nuances and permutations of homestead can be tricky. In doing estate planning, you need an experienced estate planning attorney who can walk you through and advise you on the ramifications of homestead protection.

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