The Florida Constitution defines homestead property as the residence of the owner or owner’s family, which must meet certain size and contiguity requirements. The Florida Constitution provides multiple forms of protection for the homestead of a Florida resident, some of which are highly relevant in the probate arena. Specifically, Article 10, Section 4 of the Florida Constitution prohibits the forced sale of homestead property for the satisfaction of creditor claims, subject to few narrow exceptions. Further, the Florida Constitution restricts the owner’s right to devise his or her homestead property by will if the owner is survived by a spouse or minor child, provided however that the homestead may be devised to the owner’s spouse if there is no minor child.
The protection of homestead from forced sale comes into play where the homestead is the primary asset of a Decedent’s estate, and the estate lacks the liquidity to pay all of the valid creditor claims filed against it. It is well settled among the Florida Courts that the protection of homestead from forced sale to satisfy creditor claims inures to the benefit of the heirs of the Estate. Accordingly, as long as the homestead property will pass to an heir pursuant to the Florida laws of intestacy, or is devised as provided by law to a person who is an heir pursuant to the Florida laws of intestacy, then the homestead will be protected from forced sale to satisfy creditor claims.
The constitutional restrictions on division clearly come into play in the probate arena, as well as the estate planning arena. The restriction promotes the rationale behind the homestead protections: to protect the residence of the family. Accordingly, when drafting wills and trusts, it is important to keep in mind that a homestead cannot be devised where the owner has a spouse or a minor child. If the owner does not have a spouse or a minor child, the homestead may be devised freely by the owner. As discussed above, the creditor protection afforded to the homestead property will inure to the beneficiary so long as the beneficiary would be an heir of the Decedent pursuant to the Florida laws of intestacy.
