Homestead is found in 3 different contexts under the Florida Constitution: (i) taxation in Article VII, Section 6; (ii) creditor protection in Article X, Section 4(a) and (b); and (iii) devise and descent in Article X, Section 4(c). This post follows my post on taxation and my post on creditor protection, and brings us to devise and descent (i.e., transfer restrictions).
Definition of Homestead for Article X Purposes
For these purposes, the definition of homestead is provided at Section 4(a)(1). In this context, the homestead must be an interest in real property that is no more than (i) 160 acres of contiguous (uninterrupted) land if outside a municipality, or (ii) one-half acre of contiguous land if within a municipality. As with the tax exemption, the owner must make the property their primary residence. Many types of residences qualify, including mobile homes. Although often confused, an active homestead property tax exemption is not required for creditor protection (and vice versa).
Restriction on Transfer and Encumbrance
Article X, Section 4 of the Florida Constitution provides that the homestead may not be devised (i.e., sold, transferred, or conveyed) by its owner if the owner is survived by a spouse or minor child. It goes on to exclude from this restriction transfers to the spouse if there is no minor child, and to clarify that the owner may sell or mortgage their homestead if joined by the spouse. This restriction is why both spouses are required to sign deeds and mortgages even if title is held in the name of only one spouse.
Restriction on Testamentary Devise
These same principles apply following death of the owner. An owner may not devise or leave their homestead by will, trust, or otherwise if survived by a spouse or minor child except to the surviving spouse and minor child(ren). This restriction is confirmed in Section 732.4015, Florida Statutes.
Descent of Homestead
Similarly, if a decedent dies intestate (i.e., leaving no will), then the statutes again confirm the Constitutional restrictions, but with a twist. Section 732.401, Florida Statutes, provides that the homestead descends to the surviving spouse, if any. However, if the decedent is survived by both a spouse and children (minors or otherwise), the spouse receives a life estate (i.e., ownership for their lifetime), and the children receive a remainder interest (i.e., ownership after the death of the spouse). This is subject to an election by the spouse to take an immediate one-half interest jointly with the children.
Caveat
This post provides only a summary of general information. As with any homestead issue, there are numerous technical details involved in its application. If you need assistance with transferring title of a homestead, contact a Florida real estate attorney.
