How Homestead Law Could Affect Your Real Estate Plan

Q: What good are last wills and enhanced life estate deeds if upon someone’s death their beneficiaries must hire an attorney to go to court to enforce these documents only to have any wishes of the deceased overturned by the court?

A: Each state has its own set of statutes. In the case of Florida, homestead restrictions include rules of how a will, trust or life estate deed may be affected if challenged in Probate Court.

Consider the following example.

Anna’s mother prepared a last will years before her death, leaving the family home to Anna, a paraplegic, so she would have a place to live. Anna’s mother also prepared an enhanced life estate deed naming Anna as remainderman to avoid probate court action and any contention or interference by Anna’s siblings who might want to sell the family home leaving Anna homeless.

Unfortunately for Anna, Florida homestead restrictions got in the way of her mother’s last will and the enhanced life estate deed. When Anna’s mother died, Anna had two younger siblings, both minors, and an older adult sibling who was named in the will as the guardian of the minor children in the event of her mother’s death. Because two of Anna’s siblings were minors at the time of her mother’s death, the homestead rules in Florida superseded both Anna’s mother’s last will and life estate deed. The older brother and guardian of the minor children challenged both the will and life estate deed in Probate Court arguing that he and the minor children had equal right to the home and their fair share in the assets upon selling once the minors became adults. In the years that followed, the mother’s home was sold and after paying off the mortgage, a small remaining asset was divided between Anna and her other siblings. Anna is now homeless.

Florida Homestead Law states that if you are survived by minor children or a spouse, you cannot transfer your Homestead in a Will or a Trust to anyone else. If you are not married and have no minor children, then you may transfer your homestead to whomever you want.
An enhanced life estate deed, often a good estate planning tool, should be used with caution when there are multiple remainder beneficiaries. Such a deed could be a disadvantage if a remainder beneficiary does not get along with the others or if one of them were to die during your lifetime. If one of the beneficiaries dies before you, then Florida probate will be needed at your death for that beneficiary’s interest unless you change the deed or have designated a right of survivorship between the remainder beneficiaries.

Wills, trusts, life estate deeds and Florida homestead restrictions need to be considered collectively. Contact an estate planning or real estate title attorney before you make any estate planning or real estate property retitling decisions involving your homestead property.


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Written by Kristen Jackson

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