FL Homestead

Question 1

the term Homestead refers to your ____________________ residence.

Answer 1

the term Homestead refers to your PRINCIPAL residence.

Question 2

What 3 distinct concepts are related to homestead?

Answer 2

1) Homestead Creditor Protection
2) Restraints on Devise/Conveyance of Homestead Property
3) Homestead Property Tax Exemption

Question 3

What is the basic idea of the Homestead property tax exemption?

Answer 3

You pay lower property taxes on a piece of Florida real estate if you live in it.
If you own real estate in Florida and you don’t live in it, you pay higher property taxes.

Question 4

To what properties does homestead status attach and how does it attach?

Answer 4

Homestead status automatically attaches to any property in Florida that serves as your principal residence

Question 5

Do you need any filing to designate a property as your homestead? For which of the homestead issues is a filing determinative?

Answer 5

You do not need to make any official filing to establish your homestead for purposes of Creditor Protection or Restraint on Devise.
You do need to file a declaration for property tax exemption.
But making such a filing is NOT determinative for purposes of Creditor Protection or Restraint on Devise.
Just because a bar exam character “declares” that a property is his homestead for tax purposes does not make it his homestead for other purposes. The declaration could have been incorrect or fraudulent.

Question 6

What is the test for whether a property is a homestead?

Answer 6

The owner has intent to use a property as their principal residence, AND
The owner resides at the property (with a few exceptions).

Question 7

As a general rule, you are only entitled to ___________ homestead per individual or married couple.

Answer 7

As a general rule, you are only entitled to ONE homestead per individual or married couple.

Question 8

If a married couple is ____________ living apart (i.e., they are ____________ but not divorced), each spouse may claim a different property as homestead.

Answer 8

If a married couple is LEGITIMATELY living apart (i.e., they are SEPARATED but not divorced), each spouse may claim a different property as homestead.

**exception where a married couple would have 2 homesteads

Question 9

What is homestead creditor protection?

Answer 9

A creditor cannot force you to surrender ownership of your homestead property to satisfy a debt unless the debt has a relationship to the property.

The policy is that we don’t want your debts to make you homeless.

Question 10

What are some examples of debts that CANNOT foreclose/penetrate homestead protection?

Answer 10

Can’t foreclose: *Examples only, this is not a complete list
Credit cards
Personal injury judgments
Gambling debts
Personal loans

Question 11

What are the 3 types of debts that CAN foreclose/penetrate homestead protection/have a relationship to the property?

Answer 11

Can foreclose: *Complete list (The only debts that can foreclose)

1. Taxes and assessments against the property;
2. Mortgages on the property; and
3. Construction liens for labor performed on the property, which improve the value of the property. (ANY services that improve value)

Question 12

What does homestead creditor protection protect?

Answer 12

The real property and permanent dwelling structures (aka house itself & other structures that are closely associated to dwelling structure)

Question 13

How much land can you protect inside a municipality?

Answer 13

Inside a municipality: 1/2 acre of contiguous land that includes the residential dwelling.

Question 14

How much land can you protect outside a municipality?

Answer 14

Outside a municipality: 160 contiguous acres, including all improvements (not just residential dwelling)

Question 15

What types of property can you protect?

Answer 15

Single family home, farm, duplex apartment, condo apartment, trailer (if not easily moved, houseboat (if not easily moved)

car - not as dwelling but yet as personal property

Rental property not protected b/c you dont own it

Question 16

The homestead must be established before the ________________is recorded, to obtain creditor protection.

Answer 16

The homestead must be established before the JUDGEMENT is recorded, to obtain creditor protection.

Notice, it does not need to be established before the debt was incurred.

Question 17

Homestead protection also includes:
$1,000 of ____________________ property.
$1,000 of equity in the value of a ________________.

Answer 17

Homestead protection also includes:
$1,000 of PERSONAL property.
$1,000 of equity in the value of a VEHICLE.

Question 18

if you do not claim homestead protection in real property, you can claim protection for an additional ____________________ of personal property or cash.

Answer 18

if you do not claim homestead protection in real property, you can claim protection for an additional $4,000 of personal property or cash.

Question 19

T/F: You can combine the personal property exemptions under creditor protection.

Answer 19

True

You can combine these exemptions (for example, you could combine all 3 to protect up to $6,000 of value in a vehicle).

Question 20

If you abandon the homestead, homestead protection is ____________________. This is a question of ________. We are looking for the owner’s ______________ to no longer reside at the property.

Answer 20

If you abandon the homestead, homestead protection is FORFEITED. This is a question of FACT. We are looking for the owner’s INTENT to no longer reside at the property.

Question 21

Has an owner abandoned their homestead if they rent it out? Is this conclusive evidence of abandonment?

Answer 21

There may be presumption that you have abandoned your homestead, if you rent it to another person for a long duration (1 year or more.)
This is a presumption only, not conclusive! If there is a legitimate reason that you are renting the property for a period and you plan to return, it may still be your homestead.

Question 22

If the homestead is ____________________, the proceeds retain homestead protection status provided that the owner has a good-faith _________________ to invest the proceeds in another Florida homestead within a ____________________ time.
Only the amount of proceeds actually __________ is protected.
Proceeds from a _______________ sale are probably protected, but the caselaw is unsettled.

Answer 22

If the homestead is SOLD, the proceeds retain homestead protection status provided that the owner has a good-faith INTENT to invest the proceeds in another Florida homestead within a REASONABLE time.
Only the amount of proceeds actually REINVESTED is protected. (surplus is not)
Proceeds from a FORECLOSURE sale are probably protected, but the caselaw is unsettled. (argue both sides)

Question 23

For creditor protection issues, it may not matter which spouse’s name is on the ____________________ to the property. The marital home will be homestead for ____________ spouses even if owned only by one spouse

Answer 23

For creditor protection issues, it may not matter which spouse’s name is on the TITLE to the property. The marital home will be homestead for BOTH spouses even if owned only by one spouse

Question 24

Mortgages on the homestead are an ______________ to homestead creditor protection, because the debt relates to the property

Answer 24

Mortgages on the homestead are an EXCEPTION to homestead creditor protection, because the debt relates to the property

Question 25

For mortgages and married couples, we pay very close attention to who is on _______________, and who signed the ____________________.

Answer 25

For mortgages and married couples, we pay very close attention to who is on TITLE, and who signed the MORTGAGE.

Question 26

In order for a lender to foreclose on a “marital” homestead property, both husband and wife must sign the __________ (even if only one spouse is on the _________).

Answer 26

In order for a lender to foreclose on a “marital” homestead property, both husband and wife must sign the MORTGAGE (even if only one spouse is on the DEED).

Question 27

If one spouse does not sign the mortgage, she has not ____________________ her homestead protection. she cannot be divested of her interest in the property against her will even though she doesn’t own it!

Answer 27

If one spouse does not sign the mortgage, she has not WAIVED her homestead protection. she cannot be divested of her interest in the property against her will even though she doesn’t own it!

Question 28

Homestead rights are ____________________ in favor of the debtor

Answer 28

Homestead rights are LIBERALLY CONSTRUED in favor of the debtor

Question 29

Homestead rights are a __________ right

Answer 29

Homestead rights are a CONSTITUTIONAL right

Question 30

Divorce does not automatically ______________ the homestead status of the parties. Even if one spouse _________ the property, he may still be able to claim the property as his homestead.
This is especially true if the spouse who vacated continues to support a _________________ that resides at the property.

Answer 30

Divorce does not automatically TERMINATE the homestead status of the parties. Even if one spouse VACATES the property, he may still be able to claim the property as his homestead.
This is especially true if the spouse who vacated continues to support a MINOR CHILD that resides at the property.

Question 31

A married couple that is legitimately _____________ can also have different homestead properties.

Answer 31

A married couple that is legitimately SEPARATED can also have different homestead properties.

Question 32

What are the Homestead Restraints on Devise/conveyance? When do these apply? what is the purpose of this rule?

Answer 32

One spouse cannot devise or convey the homestead property without the consent of the other spouse.
Restraints on inter vivos conveyance and devise after death.
This applies when only one spouse’s name appears on the title.
The purpose of this rule: Protect a spouse that lives in a house (but doesn’t own it).

Question 33

If the homestead property is owned by one spouse but not the other, there are ____________________ on what the owner-spouse can do with the property when he/she dies.
Here, we are going to be looking for situations where the homestead is owned by ___________ spouse only, and owner-spouse attempted to devise the property by will or trust.

Answer 33

If the homestead property is owned by one spouse but not the other, there are RESTRICTIONS on what the owner-spouse can do with the property when he/she dies.
Here, we are going to be looking for situations where the homestead is owned by ONE spouse only, and owner-spouse attempted to devise the property by will or trust.

Question 34

SCENARIO 1: If the owner is survived by a spouse and a minor child:
The owner-spouse ___________ devise the homestead to anyone.
Including the surviving _________________ and children!
By default, the surviving spouse gets a life estate, with a vested ____________________ to the owner’s lineal descendants.
Notice, it’s not only marital children who benefit and it’s not just the minors. But this rule is triggered by the survival of the decedent’s ____________________ children only.
If the decedent/owner has any minor children, then _____ of his lineal descendants will benefit (minor, adult, marital, and non-marital).
This is the same as what happens if the owner dies _____________. The homestead property is not a part of the probate estate. This is ___________.
IMPORTANT: The surviving spouse may elect to take a ½ interest in the homestead as a tenant-in-common ____________________ of a life estate, with the remaining one-half interest vesting in the surviving descendants, per stirpes.

Answer 34

SCENARIO 1: If the owner is survived by a spouse and a minor child:
The owner-spouse CANNOT devise the homestead to anyone.
Including the surviving SPOUSE and children!
By default, the surviving spouse gets a life estate, with a vested REMAINDER to the owner’s lineal descendants.
Notice, it’s not only marital children who benefit and it’s not just the minors. But this rule is triggered by the survival of the decedent’s MINOR children only.
If the decedent/owner has any minor children, then ALL of his lineal descendants will benefit (minor, adult, marital, and non-marital).
This is the same as what happens if the owner dies INTESTATE. The homestead property is not a part of the probate estate. This is AUTOMATIC.
IMPORTANT: The surviving spouse may elect to take a ½ interest in the homestead as a tenant-in-common INSTEAD of a life estate, with the remaining one-half interest vesting in the surviving descendants, per stirpes.

Question 35

SCENARIO 2: If the other spouse survives, and there are no minor children:
The ____________ result occurs by default as scenario 1. (Life estate with remainder to lineal descendants, or spouse can elect to become a ½ TIC)
But, if there are no minors to care for, the decedent can choose to devise the homestead to the surviving ____________________ in fee simple (i.e., the adult children and other descendants can be disinherited).
The decedent here has only one available choice—disinherit any adult descendants and give the entire property to the surviving spouse.
But that is not automatic. By default, it is the ______________ as Scenario 1.
If the spouse does nothing, or attempts to do anything other than give the entire property to his surviving spouse, the action is _______________ and the surviving spouse gets a life estate with a remainder to the decedent’s lineal descendants (or spouse can choose a ½ TIC estate).

Answer 35

SCENARIO 2: If the other spouse survives, and there are no minor children:
The SAME result occurs by default as scenario 1. (Life estate with remainder to lineal descendants, or spouse can elect to become a ½ TIC)
But, if there are no minors to care for, the decedent can choose to devise the homestead to the surviving SPOUSE in fee simple (i.e., the adult children and other descendants can be disinherited).
The decedent here has only one available choice—disinherit any adult descendants and give the entire property to the surviving spouse.
But that is not automatic. By default, it is the SAME as Scenario 1.
If the spouse does nothing, or attempts to do anything other than give the entire property to his surviving spouse, the action is NULLIFIED and the surviving spouse gets a life estate with a remainder to the decedent’s lineal descendants (or spouse can choose a ½ TIC estate).

Question 36

SCENARIO 3: If the decedent has a spouse and no descendants:
The surviving spouse takes a _______________ absolute, automatically.
The decedent does not need to “choose” this option, and the decedent cannot devise the property to anyone else. This is automatic.
For this to apply, the owner/decedent must have no living lineal descendants _____________ (no marital children, non-marital children, adult children, grandchildren).

Answer 36

SCENARIO 3: If the decedent has a spouse and no descendants:
The surviving spouse takes a FEE SIMPLE absolute, automatically.
The decedent does not need to “choose” this option, and the decedent cannot devise the property to anyone else. This is automatic.
For this to apply, the owner/decedent must have no living lineal descendants AT ALL (no marital children, non-marital children, adult children, grandchildren).

Question 37

SCENARIO 4: If minor children survive, and there is no surviving spouse:
The owner _____________ devise the homestead to anyone.
________ lineal descendants become owners as tenants-in-common, per stirpes.
Notice, it’s not just the ____________ that benefit. But this rule is triggered by the survival of minor children only. If the only surviving children are adults, this rule does not apply.
Notice this is very similar to what happens if there is a surviving spouse and minor children. Except there is no need for the descendants to get ____________________ interests. Since there is no spouse, the descendants get full ownership interests right away.
So, we protect a spouse that lives in a house and doesn’t own it…and we also protect _____________ children.

Answer 37

SCENARIO 4: If minor children survive, and there is no surviving spouse:
The owner CANNOT devise the homestead to anyone.
ALL lineal descendants become owners as tenants-in-common, per stirpes.
Notice, it’s not just the MINORS that benefit. But this rule is triggered by the survival of minor children only. If the only surviving children are adults, this rule does not apply.
Notice this is very similar to what happens if there is a surviving spouse and minor children. Except there is no need for the descendants to get REMAINDER interests. Since there is no spouse, the descendants get full ownership interests right away.
So, we protect a spouse that lives in a house and doesn’t own it…and we also protect MINOR children.

Question 38

SCENARIO 5: If no spouse or minor children survive
The decedent can devise the homestead to __________ he chooses.
The decedent can choose to ____________________ adult children in a will or trust, since they are not entitled to any protection.

Answer 38

SCENARIO 5: If no spouse or minor children survive
The decedent can devise the homestead to WHOMEVER he chooses.
The decedent can choose to DISINHERIT adult children in a will or trust, since they are not entitled to any protection.

Question 39

What if the property is owned by both spouses? Are there any restrictions then?

Answer 39

Property owned as joint tenants with survivorship or by the entirety is not subject to the restraint on devise.
The property passes by operation of law to the surviving spouse. (get property b/c of survivorship if TBE) There is no need for homestead analysis.
Husband and Wife can disinherit the kids, as long as they both sign the instrument.
WHY? Remember the purpose of this rule. We want to protect a spouse that lives in a house, but doesn’t own it. If the “other” spouse owns it, he/she doesn’t need to be protected.

Question 40

how can a spouse waive the restraint on devise or conveyance? What is required? What language would be sufficient?

Answer 40

A spouse can waive the restraint on devise or conveyance of a homestead, in a valid pre or post nuptial agreement.
Remember: If it is a prenup, no financial disclosure is required. If it is a postnup, fair financial disclosure is required.
A waiver of “all rights” to inherit or “all rights” to the property in question will generally be sufficient to waive homestead protection.

Question 41

A spouse can also waive his/her rights to homestead restraint on devise or conveyance by signing a “safe harbor” ___________.
This is often done when the owner spouse is conveying the property to a trust to carry out an estate plan that differs from the default rules we just learned.
The ________________ spouse signs the deed to indicate that he/she is waiving homestead rights upon death.
The deed must include special language: “By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse from devising the homestead property described in this deed to someone other than ________.”

Answer 41

A spouse can also waive his/her rights to homestead restraint on devise or conveyance by signing a “safe harbor” DEED.
This is often done when the owner spouse is conveying the property to a trust to carry out an estate plan that differs from the default rules we just learned.
The NON-OWNER spouse signs the deed to indicate that he/she is waiving homestead rights upon death.
The deed must include special language: “By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse from devising the homestead property described in this deed to someone other than ME.”

Question 42

Waiver of the restraint on devise (DOES/DOES NOT) waive creditor protection rights!

Answer 42

Waiver of the restraint on devise DOES NOT waive creditor protection rights!