Under Florida law, a “homestead” enjoys certain protections. A homestead is, generally, the home and land on which an owner and his or her family reside. The Florida Constitution exempts homesteads from most liens and judgments, which protection inures to the surviving spouse or heirs of the owner.
The Constitution prohibits an owner from “devising” a homestead if the owner is survived by a spouse or minor child (unless the owner is not survived by any minor children and devises the homestead to his or her spouse). Florida probate rules define “devise” and mandate certain dispositions if a homestead is devised inconsistently with the Constitution. A devise is a testamentary disposition of the property. A homestead devised contrary to the Constitution is void. Under prior law, if a decedent was survived by a spouse and descendants, property which was devised improperly passed instead to the surviving spouse for life with a vested remainder in the living descendants.
The new rules allow a homestead owner to transfer the property during his or her lifetime, with certain conditions, and be free from the Constitutional restrictions. The primary condition is that the owner cannot retain the power to revoke the transfer or revest the interest in himself or herself. The owner may retain extensive rights and impose substantial limitations on the rights of the donees without violating this condition.
The owner may, for example, change the rights of beneficiaries within a certain class as long as the owner cannot exercise the right in favor of himself or herself, his or her creditors, or to discharge his or her legal obligations. The transferor may also retain a separate interest in the property such as a life estate, reversion, etc. Moreover, the donees may possess the property only upon a certain date or specified event, such as the transferor’s death. The interest may also be subject to divestment upon a certain date or specified event.
Another major change is that the surviving spouse may now choose to be a tenant in common with the decedent’s living issue instead of possessing a life estate. This may help surviving spouses because the law for tenancy in common is clearer for purposes of valuation, allocation of ownership expenses, and division of sale proceeds than that of life estates. It also allows the spouse to use partition procedures – which is not permitted with a life estate.