Florida Probate: What is Florida's Homestead Exemption?
Updated: Dec 14, 2020
Florida's homestead exemption generally protects the deceased person's ("decedent's") home from creditors' claims when the property passes to a family member ("heir"). What qualifies as homestead property and how does the exemption work?
Florida's homestead exemption is among the most protective homestead exemptions in the United States. Unlike some states that limit the value of homestead protection, Florida's homestead exemption protects the entire value of the property, and there is no limit to the value of the property that can be protected.
What Qualifies as Homestead Property?
Real property qualifies as homestead property for purposes of Florida probate if:
1) The decedent owned the property as a natural person (as opposed to through a business, etc.);
2) The decedent was a permanent Florida resident;
3) The property was the decedent’s primary residence; and
4) The property was not more than half an acre in a municipality or 160 acres outside a municipality.
Florida courts have expanded definitions of homestead property to include more than just a single family house. Condominiums, manufactured homes, and mobile homes also enjoy homestead protection.
Florida's homestead exemption is among the most protective homestead exemptions in the United States. Unlike some states that limit the value of homestead exemption, Florida's homestead exemption protects the entire value of the property, and there is no limit to the value of the property that can be protected.
How Does Homestead Exemption Work?
When a Florida residence qualifies as homestead property in a probate or estate proceeding, the homestead property is not made part of the probate estate and is therefore protected from creditors. Generally, only assets in the probate estate are subject to creditors' claims. When the homestead property passes outside of the probate estate, it means that creditors cannot force sale of the homestead property to satisfy the decedent's debts.
What are Exceptions to the Homestead Exemption?
There are exceptions to the homestead exemption. Homestead exemptions do not protect the homestead property from foreclosure by a mortgage holder. Similarly, the homestead exemption will not protect homestead property from pre-existing liens (e.g. homeowner association or condominium association fees) or mechanic’s liens (e.g. the cost of materials and labor used by a contractor to improve or repair the homestead property). If the decedent, during his or her lifetime, used the homestead to secure a debt of the estate, the homestead protection from forced sale most likely will not apply to that particular creditor.
The Internal Revenue Service ("IRS") may file a federal tax lien or serve a levy against the homestead property and force a sale to satisfy a lien for nonpayment of taxes on the property. The homestead property is also subject to the claims of the IRS for any estate tax that might be due.
No homestead exemption applies if:
1) The homestead is devised to someone who is not an heir;
2) The property was purchased as a future residence but was not yet occupied as the primary residence.
3) The property was a second home or investment property.