The ins and outs of Florida’s homestead laws: Where an heir can be left out

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Part of the reason Florida is considered a “debtor-friendly” state is because of its homestead protection laws. Florida’s homestead law allows a legal resident of the State of Florida to pass down a primary residence (the “homestead property”) to the resident’s heirs outside of probate and without being vulnerable to the claims of the decedent’s creditors. However, the homestead property is still subject to the claims of the Internal Revenue Service for any estate tax that might be due. Additionally, Florida’s constitution restricts how the homestead property can be devised if a person is survived by a spouse or minor child. Even if the decedent was the sole owner of the homestead property, if the decedent was married at the time of his or her death (and assuming the surviving spouse had not waived his or her homestead rights) then the surviving spouse would be entitled to receive a life estate in the homestead property and the decedent’s children would be entitled to the remainder interest.


The First District Court of Appeals dove into some of Florida’s complex homestead issues in Webb v. Blue 43 Fla. L Weekly D942a (Fla. 1st DCA 2018). Specifically, the court looked at how to properly devise homestead property to a non-heir, when the decedent was survived by heirs. It found because the decedent was not survived by a spouse or minor children, there was no constitutional restriction on the devise of the decedent’s homestead.


Here, the decedent died testate with no spouse or children. The decedent, named his friend as his personal representative and his sole beneficiary. His will stated “My entire estate is all property I own at my death that is subject to this will.”  The decedent’s heirs filed a petition to determine homestead status, arguing that the property was the decedent’s homestead and should pass to the decedent’s heirs since the will did not specifically reference his homestead as part of the estate. The trial court denied the petition, finding that because the decedent was not survived by a spouse or minor child, he could freely devise his homestead to anyone.


After review of Florida’s homestead laws, the appellate court affirmed the trial court’s ruling. The court found that because the decedent was not survived by a spouse or a minor child, there was no constitutional restriction on the devise of homestead. As such, the homestead could either be devised to the decedent’s heirs or it could be devised to someone other than an heir, which would render the homestead a general asset of the estate subject to the claims of creditors and the expenses of administration. The court concluded that because decedent’s will expressed his clear intent to devise his homestead to his friend, a non-heir, the homestead became part of the probate estate where the devise was permitted
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