Florida Homestead: HOMESTEAD PROPER

KELLEY'S HOMESTEAD PARADIGM

Kelley's Homestead Paradigm ("the Paradigm") is basically a big-picture view of the Homestead Analysis (see graphic).  The Paradigm distills all of the seminal Homestead cases and statutes relating to the devise of Homestead into one visual analysis.

On the left-hand side of the Paradigm is a gray column.  If a property falls into this column, it either never was Protected Homestead or it lost its protected status.  The diamonds go step-by-step through the Homestead Analysis until the property either falls into the gray column or is finally declared protected.  The goal for the attorney (assuming that the attorney does not represent the creditors) is to keep the property out of the gray column (i.e., out of the creditor's hands) and in the diamonds (i.e., in the hands of the Decedent's heirs with the protection from creditor claims intact).

The Preliminary Question is:  "Is the property protected Homestead?"  This is to be determined by the parameters laid out in the Florida Constitution Article X, § 4 and cases such as McKean, Englke, and Ostyn.  If it is not, it goes straight to the creditor column because the property is a probate asset.  However, if it makes it past this threshold question, then it is not a probate asset and the rest of the Paradigm applies.

The first question at Level 1, is:  "Was the property owned by the Decedent?"  If no, gray column; if yes, continue.

Level 2 asks:  "Was the decedent survived by a minor child?"  Because the State of Florida has an interest in ensuring that minor children are provided for, the legislature (both through the Florida Constitution and Florida Statutes) has passed legislation stating that when a minor child is involved, the property may not be devised in any way, shape or form (please see the relevant statutes on the Paradigm and under "Legislative Law").  The property then passes by operation of law and a life estate is created in the Surviving Spouse ("Spouse"), if there is one, with a vested remainder in all of the Decedent's children (both minor and adult alike).  If the Spouse does not wish to take a life-estate, then the Spouse may elect to receive 50% of the property with the other 50% being split evenly amongst the Decedent's descendants per the intestacy laws.  If a minor child is involved and the property is devised to anyone (including the Spouse), the devise is declared invalid and the property passes by statute.

At Level 3 it has been determined that there is no minor child involved and the question becomes:  "Is there a Surviving Spouse?"  If yes, "Was there a devise?"  If there was a devise, by Constitutional mandate, it may only be a devise of the Decedent's entire interest in the Homestead property and (unless there is a spousal waiver) may only made to the Surviving Spouse (i.e., the Will may not leave a life-estate or a partial-interest in the property to the Spouse or leave the property to anyone else).  If the devise does not meet these requirements and there is no valid spousal waiver, the devise is declared void and the property passes in full to the Spouse if the decedent has no descendants, or passes as a life-estate to the Spouse with a vested remainder in the descendants (again, the Spouse has the right to elect taking 50% of the property in lieu of the life-estate).  If there is no Spouse, then continue to Level 4.

Here, at Level 4, the property is again at risk of falling to the estate's creditors.  The question at this point is:  "Does the Decedent have any heirs?"  These heirs are defined in Florida Statute § 732.103 (i.e., the "Intestacy Statute").  If there are no heirs as defined by the Intestacy Statute, then the Homestead loses its protected status, becomes a probate asset, and can be sold to satisfy the debts of the estate.  If there are heirs, the protection remains intact and the analysis continues.

Level 5 asks whether or not the Decedent's Homestead was devised in any way.  If it was not devised to anyone, then it passes to the Decedent's heirs (as defined by the Intestacy Statute) and they take the property as tenants in common and the protection remains intact.

If the property was devised, Level 6 comes into play.  The question there is:  "Was the property left to an heir(s) who is/are listed in Fla. Stat. § 732.103?"  If the property is not left to an heir-at-law, then it becomes a probate asset and is subject to claims.  However, if the property is left to an heir-at-law, then the person listed in the will takes title of the property free and clear of all non-exempt creditor's claims regardless of whether or not other heirs exist. 

• Article 10 § 4 : Online Sunshine ; LexisNexis ; Westlaw

  • A property is exempt from forced sale as Homestead if it is:

1. Owned by a Natural Person; 

2. Meets the Land Size Requirements

   • Inside Municipality : Fewer Than 1/2 Acre Contiguous Land,

   • Outside Municipality : Fewer Than 160 Acres Contiguous Land; and

3. Owner makes, or intends to make, Property his/her Primary Residence or the Primary Residence of the Owner's Family.

• A Homestead property is not exempt from forced sale if the sale is:

1. To pay taxes and assessments on the Homestead property;

2. To pay the balance of a contract for the purchase, improvement or repair of the Homestead property (e.g., mortgage or home improvement loan); or

3. To pay bills related to the house, field, or labor done on the Homestead property.

• Fla. Stat. § 26.012–Jurisdiction of Circuit Court : Online Sunshine ; LexisNexis 2019 ; LexisNexis 2020 ; Westlaw ; Bill Preempting

  • Statute gives the State Circuit Court of Appeals to hear estate cases.

• Fla. Stat. § 222.01–Designation by Homestead Owner Before Levy : Online Sunshine ; LexisNexis ; Westlaw

  • Procedure for how an owner claims a Homestead exemption under the Florida Constitution and an additional listing of what creditor claims are not barred by Article X, § 4.

• Fla. Stat. § 222.02–Designation by Homestead Owner After Levy : Online Sunshine ; LexisNexis ; Westlaw

  • Procedures for stopping the sale of Constitutionally protected Homestead property.

• Fla. Stat. § 222.08–Jurisdiction to Set Apart Homestead and Exemption : Online Sunshine ; LexisNexis ; Westlaw

  • Statute gives authority to the court to determine homestead and homestead exemption.

• Fla. Stat. § 409.910–Responsibility for Repayments on Behalf of Medicaid-Eligible Persons When Other Parties are Liable : Online Sunshine ; LexisNexis ; Westlaw

  • The Agency of Healthcare Administration may file a claim against a Medicaid recipient's estate as a creditor because Medicaid is a last resort.

• Fla. Stat. § 409.9101–Recovery for Payments Made on Behalf of Medicaid-Eligible Persons : Online Sunshine ; LexisNexis ; Westlaw

  • "Medicaid Estate Recovery Act" : If the Medicaid recipient is not survived by a spouse, minor child under 21, or a child who is disabled (as defined in the statute), then the agency may file a claim as a creditor of the estate; however, Homestead Exempt Property may not be sold to fulfill the obligation.

• Fla. Stat. § 732.401–Descent of Homestead : Online Sunshine ; LexisNexis ; Westlaw

  • Describes how property, already determined to be Homestead, is allowed to pass from the Decedent to Decedent's heirs without losing its Homestead exemption.

• Fla. Stat. § 732.4015–Devise of Homestead : Online Sunshine ; LexisNexis ; Westlaw

  • When and how a Decedent may leave his/her Homestead property to someone in a Will without losing the exemption.

• Fla. Stat. § 732.4017–Inter Vivos Transfer of Homestead Property : Online Sunshine ; LexisNexis ; Westlaw

  • Rules regarding the transfer of Homestead Property (including transfer to a trust) during the Owner's lifetime; does not discuss prohibition of Homestead transfer if the Owner's Spouse does not waive his/her right to the Spousal Homestead Protection.

• Fla. Stat. § 732.702–Waiver of Spousal Rights : Online Sunshine ; LexisNexis ; Westlaw

  • When and how a Spouse can waive his/her rights to the seven Florida Spousal Protections.

• Fla. Stat. § 732.7025–Waiver of Homestead Rights through Deed : Online Sunshine ; LexisNexis ; Westlaw

  • Describes how a Spouse can waive his/her rights to the Homestead Protection through the deed associated with the Homestead property.

• Fla. Stat. § 732.801–Disclaimer of Interest in Property Passing by Will or Intestate Succession or Under Certain Powers of Appointment : Online Sunshine ; LexisNexis ; Westlaw

  • Repealed by 2005 Fla. SB 1368.

• Fla. Stat. § 733.106–Costs and Attorney's Fees : Online Sunshine ; LexisNexis ; Westlaw

  • When the attorney is working for the estate at the behest of the Personal Representative, the court may designate from where in the Estate the Attorney is paid.

• Fla. Stat. § 733.2121–Notice to Creditors; Filing of Claims : Online Sunshine ; LexisNexis ; Westlaw

  • Besides notifying creditors, the Personal Representative is required to notify the Agency of Healthcare Administration and the Florida Department of Revenue when the administrative agencies are determined to be creditors under the statute.

• Fla. Stat. § 733.607–Possession of Estate : Online Sunshine ; LexisNexis ; Westlaw

  • States the Personal Representative's power over the Homestead.

• Fla. Stat. § 733.6171–Compensation of Attorney for the Personal Representative : Online Sunshine ; LexisNexis ; Westlaw ; Bloomberg

  • Specifies what "reasonable fees" are for an attorney working at the behest of the Personal Representative of an estate.

• Fla. Stat. § 733.815–Possession of Estate: Online Sunshine ; LexisNexis ; Westlaw

  • Heirs and beneficiaries may formally agree to alter prescribed interests in estates, but they must comply with this statute.​

Homestead or Not?

• Ostyn v. Olympic, 455 So. 2d 1137, 1138 (Fla. 2d DCA 1984). : Google Scholar ; LexisNexis ; Westlaw

  • Holding : When property is owned as Joint Tenants with Rights of Survivorship, there is no property interest to which the homestead exemption could attach because the other Joint Tenants had a right to the land by operation of law.

• Public Health Trust v. Lopez, 531 So. 2d 946, 947 (Fla. 1988). : Court Listener ; LexisNexis ; Westlaw

  • Holding : Homestead applies to any "natural person," not just the "head of the household," and the homestead exemption passes from the homesteader to his/her spouse or heirs (as defined in 732.103) free and clear of creditors' claims (unless one of the Constitutional exceptions).

  • Distinguished by In re Estate of Hill : Lopez does not provide any support for the proposition that a decedent is precluded from devising his/her homestead when there is no surviving spouse or minor child.

Surviving Spouse's Rights

• Cavanaugh v. Cavanaugh, 542 So. 2d 1345, 1351 (Fla. 1st DCA 1989). : Court Listener ; LexisNexis ; Westlaw

  • Holding : "where the homestead is not devised as permitted by law and the [Florida] constitution, and the decedent is survived by a spouse and lineal descendants, the homestead passes outside of the will and thereby outside of probate by virtue of section 732.401."

• Clifton v. Clifton, 553 So. 2d 192, 194 (Fla. 5th DCA 1989). : Court Listener ; LexisNexis ; Westlaw

  • Holding : "It is now well established that the owner of the homestead property may devise the fee [simple] to a surviving spouse, if all of the owner's children are adults."

• Estate of Murphy, 340 So. 2d 107, 109 (Fla. 1976). : Court Listener ; LexisNexis ; Westlaw

  • Holding : While a specific devise is preferred, a residuary clause is enough to demonstrate an intent to devise the homestead property to a spouse.

  • See : Fla. Stat. § 732.4015

• In re Estate of Cleeves, 509 So. 2d 1256 (Fla. 2d DCA 1987). : Court Listener ; LexisNexis ; Westlaw

  • Holding : "the devise to a surviving spouse of less than 100 percent of the decedent's interest in homestead property is invalid" (1258) ; because a devise of less than 100 percent of homestead property is unconstitutional, the property descends according to § 732.401 (1260).

  • Distinguished by In re Estate of Donovan : devise failed because decedent willed surviving spouse less than full interest in the homestead property (i.e., Cleeves left his wife 50% of his fee simple interest).

• In re Estate of Donovan, 550 So. 2d 37, 39 (Fla. 2d DCA 1989). : Court Listener ; LexisNexis ; Westlaw

  • Holding : "the purpose behind the constitution's homestead devise provision is to protect the interest of the surviving spouse.  Thus, the homestead law is to be liberally construed for the benefit of the surviving spouse it was designed to protect" ; When the terms of a will, leave a vested homestead in a spouse as if there had been no trust, the devise complies with Article X, § 4(c) of the Florida Constitution.

  • Distinguishes : In re Estate of Finch and In re Estate of Cleaves.

• In re Estate of Finch, 401 So. 2d 1308, 1309 (Fla. 1981). : Court Listener ; LexisNexis ; Westlaw

  • Holding : "Where a testator dies leaving a surviving spouse and adult children, the [homestead] property may not be devised by leaving less than a fee simple interest to the surviving spouse" ; "If a devise violates the Florida Probate Code and constitution, it descends by way of intestate succession, pursuant to § 732.401(1)."

  • Distinguished by In re Estate of Donovan : devise failed because decedent willed surviving spouse less than full interest in the homestead property (i.e., Finch left spouse life-estate in property).

Devises Made When No Spousal Rights or Minor Child

• Bartelt v. Bartelt, 579 So. 2d 282, 283 (Fla. 3d DCA 1991). : Court Listener ; LexisNexis ; Westlaw

  • Holding : "Where there is no surviving spouse or minor child, the decedent's homestead may be devised without limitation.  When the decedent's homestead is devised to his son -- a member of the class of persons who are the decedent's "heirs" --the constitutional exemption from forced sale by the decedent's creditors found in Article X, Section 4(b) of the Florida Constitution, inures to that son.  The test is not how th title was devolved, but rather to whom it passed."

  • Questions : In re Estate of Hill.

• City Nat'l Bank v. Tescher, 578 So. 2d 701, 702 (Fla. 1991). : Court Listener ; LexisNexis ; Westlaw

  • Holding : "when a decedent is survived by no minor children and the surviving spouse has waived homestead rights, there is no constitutional restriction on devising homestead property."

• Engelke v. Engleke, 921 So. 2d 693, 697 (Fla. 4th DCA 2006). : Court Listener ; LexisNexis ; Westlaw

  • Holding : When Decedent has no minor children and no surviving spouse, protected homestead that is left to an heir as described in Fla. Stat. § 732.103 retains the homestead protection against forced sale.

• In re Estate of Hill, 552 So. 2d 1133, 1135 (Fla. 3d DCA 1989). : Google Scholar ; LexisNexis ; Westlaw

  • Holding : When decedent is not survived by a spouse or minor child, the homestead becomes deviseable.  However, when a devisee is not an heir under [Fla. Stat. § 732.103], then the homestead does NOT pass free and clear of creditors' claims.

  • Distinguishes : Public Health Trust v. Lopez.

  • Questioned by Bartelt v. Bartelt : The result reached in Hill is correct; the homestead lost its exemption because it was devised to a "non-heir," not because it was devised by a will.

• King v. Ellison, 648 So. 2d 666, 667 (Fla. 1994). : Court Listener ; LexisNexis ; Westlaw

  • Holding : § 732.401(1) is not unconstitutional when applied to defeat a testator's intent to devise homestead property equally to adult stepchildren as well as to adult lineal descendants.

• McKean v. Warburton, 919 So. 2d 341, 347 (Fla. 2005). : Court Listener ; LexisNexis ; Westlaw

  • Holding : "where the decedent is not survived by a spouse or minor child, the decedent's homestead property passes to the residuary devisees, not the general devisees, unless there is a specific testamentary disposition ordering the property to be sold and the proceeds made a part of the general estate."

  • Distinguished by Harrell v. Snyder : Fla. Stat. § 733.608(2) (Personal Representatives and Homestead) was not implicated in McKean, as it was in Harrell, so McKean does not dictate a particular outcome in Harrell.

• Snyder v. Davis, 699 So. 2d 999, 1005 (Fla. 1997). : Google Scholar ; LexisNexis ; Westlaw

  • Holding : When there is no surviving spouse or minor children, a decedent may devise his/her homestead property to a lineal descendant, who would not immediately take under the intestacy statute (but is a person defined as an heir under that statute), and still retain the homestead exemption [i.e., a grandmother can devise her homestead to her granddaughter even though her son (who would immediately take under the intestacy statute) is alive].

• Steffens v. Evans, 70 So. 3d 758 (Fla. 4th DCA 2011). : Court Listener ; LexisNexis ; Westlaw

  • Holding : When a spouse signs a post-nuptial agreement waiving all right to homestead, the spouse has made a valid waiver and has no claim to the homestead property.

Personal Representative's Authority

• Harrell v. Snyder, 913 So. 2d 749, 751-52 (Fla. 5th DCA 2005). : Court Listener ; LexisNexis ; Westlaw

  • Holding : Because homestead is not a probate estate, unless a testamentary disposition is made, the personal representative has no authority over the property except to take possession of it to preserve the homestead for the legitimate heir(s) pursuant to Fla. Stat. § 733.608(2).

  • Distinguishes : McKean v. Warburton.

• Knadle v. Estate of Knadle, 686 So. 2d 631, 632 (Fla. 1st DCA 1996). : Court Listener ; LexisNexis ; Westlaw

  • Holding : When there is no surviving spouse and no minor children and a decedent states in his/her will that the personal representative is to sell the homestead and the net proceeds are to be the residue of his/her estate, then the property loses its exemption and becomes open to claims by creditors.

Protection From Creditors

• Havoco of America, LTD v. Hill, 790 So. 2d 1018 (Fla. 2001). : Court Listener ; LexisNexis ; Westlaw

  • Holding : Article X, § 4 exempts a Florida Homestead even when the debtor acquires the property using non-exempt funds with the specific intent of hindering, delaying, or defrauding creditors in violation of Fla. Stat. § 726.105, Fla. Stat. § 222.29, and Fla. Stat. § 222.30; applies only when the funds were used to purchase a Homestead property.

  • Distinguished by Willis : fraudulently obtained funds were not used to purchase a Homestead, but were funneled into the owners' personal accounts after they had sold their property.

• McGann v. Halker, 530 So. 2d 440 (Fla. 3d DCA 1988). : Google Scholar ; LexisNexis ; Westlaw

  • Holding : Homestead property does not lose its protection when the owner leaves his/her family behind on the property, travels and works in other states, and returns to the property; intent of the property owner controls. 

• Orange Brevard Plumbing & Heating Company v. La Croix, 137 So. 2d 201 (Fla. 1962). : Court Listener ; LexisNexis ; Westlaw

  • Holding : The Homestead exemption extends to the proceeds from the sale of that property when the owner's good faith intent is that  the proceeds will be used towards a new Homestead; funds must not be commingled with owner's other funds and must be set aside for the sole purpose of acquiring Homestead; the exemption only applies to portion of funds that are used towards a new Homestead (i.e., profit is not exempt); intent alone is NOT sufficient to establish a Homestead.

• Willis v. Red Reef, Inc., 921 So. 2d 681, 684 (Fla. 4th DCA 2006). : Court Listener ; LexisNexis ; Westlaw

  • Holding : equitable liens on Homesteads are limited to situations where the fruits of fraudulent activity are used to purchase or improve the Homestead property; because the creditor's funds were not used to pay off or purchase the Homestead property, the creditor may not have a lien against it.

  • Distinguishes : Havoco

Termination of Homestead

• Dean v. Heimbach, 409 So. 2d 157 (Fla. 1st DCA 1982). : Court Listener ; LexisNexis ; Westlaw

  • Holding :  Involuntary absence from a property (i.e., required to live in a county where your Homestead is not because of criminal charges) does not constitute abandonment of Homestead by itself; as long as there is an intent to return to the property and it remains the permanent abode of the owner or the owner's family, the Homestead exemption remains intact.

• In re Estate of Sholtz, 543 So. 2d 219 (Fla. 1989). : Court Listener ; LexisNexis ; Westlaw

  • Holding : The abandonment concept as described in Barlow v. Barlow [156 Fla. 458 (Fla. 1945)] is no longer applicable because it was tied directly to the "Head of Household" analysis; when there is a surviving spouse, the Homestead property goes to the surviving spouse per the statutes, even if the married couple is legally separated.

• Links to the Guide to the Florida Government

  • The years available are: 2002, 2005-Present.

• 2019 : Produced by the Office of the Clerk of the House of Representatives

  • Provides a listing of all the Florida Administrative Agencies and their Contact Officers as of March 2019.

• 2014 : Produced by the Office of the Clerk of the House of Representatives

  • Provides a listing of all the Florida Administrative Agencies and their Contact Officers as of January 2014.

• 2009 : Produced by the Office of the Clerk of the House of Representatives

  • Provides a listing of all the Florida Administrative Agencies and their Contact Officers as of March 2009.

• 2002 : Produced by the Office of the Clerk of the House of Representatives

  • Provides a listing of all the Florida Administrative Agencies and their Contact Officers as of 2002.

• Opinion of the Attorney General: 1935 Fla. AG LEXIS 727 : Opinion of the Attorney General (April 19, 1935)

  • When a Homestead Exempt Property is later included within a municipality, it may retain its exemption even if the property is more than 1/2 of an acre.

• Opinion of the Attorney General: 1973 Fla. AG LEXIS 183 : Opinion of the Attorney General (May 9, 1973)

  • If a property falls under Article X, § 4 of the Florida Constitution, the Personal Representative of the estate may NOT file for the Homestead tax exemption on the property because the Personal Representative has no jurisdiction over the property; [this opinion is currently unavailable on the Florida Attorney General's website; please contact your local law library for further assistance.]

• Opinion of the Attorney General: 1985 Fla. AG LEXIS 80 : Opinion of the Attorney General (Mar. 26, 1985)

  • A lien created by Fla. Stat. § 162.09 is not enforceable against protected Homestead unless the courts later determine otherwise.

• Opinion of the Attorney General: 1989 Fla. AG LEXIS 94 : Opinion of the Attorney General (Nov. 22, 1989)

  • Garbage Collection Fees are not a "Non-Ad Valorem Assessment" under Fla. Stat. § 197.3632 and, therefore, are not a tax that can force the sale of a Homestead.

• Attorney General Opinions

  • Free Access to Florida Attorney General Opinions.

• Advisory Legal Opinions

  • Florida Attorney General Legal Opinions from 1971-2019.

• Historical Advisory Legal Opinions

  • Florida Attorney General Legal Opinions from 1913-1910.

• Florida Administrative Code Annotated : Florida Department of State

  • 59G-1.052 : Third Party Liability Requirements : All required notices regarding estate probate actions, per Fla. Stat. §§ 409.901, 409.9101 must be sent to the address found on the AHCA Website; while the Personal Representative of an estate is required to notify the AHCA of the probate proceeding, the Homestead may not be sold to satisfy the Medicaid repayment requirement.

• Florida Department of Revenue : Florida Department of Revenue

  • These link to the Rules and Regulations of the Florida Department of Revenue; while the Personal Representative of an estate is required to notify the DOR of the probate proceeding, and taxes owed on Homestead can force a sale of the property, the DOR does not appear to have any published policies on this situation.

• Commentary to 1972, 1984, and 1998 Amendments 

  • Am. H.J.R. 4324 1972; Adopted 1972 : Section was modified to allow the Decedent to devise Homestead property to the surviving spouse if the Decedent had no minor children.

  • Am. H.J.R. 40, 1983; Adopted 1984 : Words "Natural Person" replaced "Head of Household" so that the Homestead protection extended to all real persons and continued to exclude fictitious persons (i.e, corporations).

  • Am. Proposed by Constitution Revision Commission, Revision No. 3, 1998, Adopted 1998 : Revision removed all gender-related terminology; this modification not intended to have a substantive effect.

• Journal of the House of Representatives

  • 1998 Reg. Sess., No. 4 (Mar. 11, 1998) : SJR 1816 proposed that property acquired with an intent to defraud creditors not be exempt from proposed sale.

  • 1998 Reg. Sess., No. 29 (April 28, 1998) : The Florida House of Representatives ("HoR") submitted the proposed amendments for referendum; the amendments were adopted in the 1998 election.  The HoR also proposed that property acquired with an intent to defraud creditors not be exempt from proposed sale.

  • 2003 Reg. Sess., No. 1 (Mar. 4, 2003) : HJR 973 proposed that property acquired with an intent to defraud creditors not be exempt from proposed sale.

• Florida Constitution Revision Commission

  • For more information about the the ins and outs of Constitutional revision, please contact the FCRC, and more power to you!

• Florida Legislation: Legislative History

  • This site, published by Florida State University's Law Library and contributed to by all other Florida Law Libraries, provides access to many different sources of legislative history; sites include: Florida Senate Archives, Florida Legislative Histories, and Legislative History Research.

• Florida Legislative Bill History

  • This database permits a keyword search of a Florida Bill's Legislative History.

• Florida Legislative History

  • Links to Florida resources such as: Bill Analysis & Other Reports, Governor Messages, and Journals.

• Florida State Voting Records

  • This database searches by keyword to check voting records of Florida representatives.

Florida's Court Rules : Florida Bar Association ; LexisNexis ; Westlaw

• These links go to listings of the different Court Rules in Florida; Rule Sets include: Florida Probate Rules, Florida Rules of Civil Procedure, and Florida Rules of Judicial Administration.

Florida Probate Rules : Florida Bar Association ; LexisNexis ; Westlaw

• These are the official rules for Probate Court in Florida; the rules enumerated in this section can be found for free by clicking on the Florida Bar Link associated with this topic.

• R. 5.020: Pleadings, Verification, Motions : LexisNexis ; Westlaw 

  • Requirements for Pleadings, Petitions, Motions, Rehearings, and Verifications.

• R. 5.042: Time : LexisNexis ; Westlaw 

  • Rules regarding computation and enlargement of time limitations on the estate.

• R. 5.205: Filing Evidence of Death : LexisNexis ; Westlaw 

  • Among other situations, when there is a petition for determination of protected Homestead the petitioner must submit a copy of an official death record.

• R. 5.340: Inventory : LexisNexis ; Westlaw 

  • Real Property that appears to be protected Homestead needs to be listed on the Estate's Inventory by the Personal Representative.

• R. 5.402: Notice of Lien on Protected Homestead : LexisNexis ; Westlaw

  • Requirements of a lien on protected Homestead filed by a Personal Representative.

• R. 5.403: Proceedings to Determine Amount of Lien on Protected Homestead : LexisNexis ; Westlaw

  • Discusses the requirements of the petition to determine the amount of the lien on protected Homestead.

• R. 5.404: Notice of Taking Possession of Protected Homestead : LexisNexis ; Westlaw

  • Rules about what a Personal Representative is required to do if he/she takes control of Article X property.

• R. 5.405: Proceedings to Determine Protected Homestead Real Property : LexisNexis ; Westlaw

  • States who may file a petition to determine protected Homestead and what the requirements of the petition are.

• R. 5.420: Disposition of Personal Property Without Administration : LexisNexis ; Westlaw 

  • An estate that meets the requirements may file a petition to dispose of personal property (including exempt property) without Administration through the probate system.

• R. 5.490: Form and Manner of Presenting a Claim : LexisNexis ; Westlaw 

  • Method a creditor must use to file a claim against an estate (including Homestead property).

• R. 5.530: Summary Administration : LexisNexis ; Westlaw 

  • When a petitioner is filing for Summary Administration and protected Homestead is involved, the petition must include a description of the real property.

Florida Rules of Judicial Administration : Florida Bar Association ; LexisNexis ; Westlaw

• These are the official rules of Judicial Administration for Florida.

• Estate Planning: West's Florida Practice Series : Ave Maria School of Law

  • § 19.38: Election of Surviving Spouse to Take One-Half Interest in Decedent's Interest in Property : To be used when the Surviving Spouse decides to take a 1/2 interest in the Homestead rather than a life-estate.

• Florida Estate & Probate Practice : Ave Maria School of Law

  • 4.43: Petition to Set Aside Homestead : Petition requesting that the court declare a piece of real property as Homestead.

  • 4.48: Complaint in Action to Have Court Declare That Certain Real Property is a Homestead : Model Complaint for litigation.

  • 6.92: Election of Surviving Spouse to Take One-Half Interest of Decedent's Interest in Property : To be used when the Surviving Spouse decides to take a 1/2 interest in the Homestead rather than a life-estate.

• Florida Estates Practice Guide : Ave Maria School of Law

  • 10.201: Formal Ancillary Administration : Provides the forms required for this issue.

  • § 14.200 Forms Homestead and Exempt Property : List of the forms required to Homestead and Exempt property.

  • 35.200: Pleadings for Appointment and Qualification of Personal Representative : Provides the forms required for this issue.

  • 732.401: Election of Surviving Spouse to Take One-Half Interest of Decedent's Interest in Property : To be used when the Surviving Spouse decides to take a 1/2 interest in the Homestead rather than a life-estate.

  • 5A.210: Retainer Agreement : Retainer agreement that specifies what an Attorney's Duties are to an estate and the related Homestead.

• Florida Form Finder

  • § 6.83: Petition to Determine Homestead Real Property (Florida) : Sample Petition.

  • § 52.50: Order Determining Homestead Status of Real Property : Order stating whether or not a piece of real property actually is Homestead.

  • § 228.953: Home, Homestead, Residence, etc. : Model clause for Will that bequeaths Homestead property to another; Beware the Paradigm.

  • § 266.578: Devise of Homestead : Model clause for Will that bequeaths Homestead property to another; Beware the Paradigm.

• Florida Jurisprudence 2d.: Forms : KFF 80.F56 1977

  • This resource is available at Ave Maria School of Law; forms are located in their own volumes at the end of the main title volumes.

• Florida Probate Code Manual : Ave Maria School of Law

  • Chapter 18 - Probate Forms : List of forms for both single and multiple petitioners for intestate Summary Administration.

• Florida Rules of Civil Procedure : LexisNexis ; Westlaw

  • Form 1.997: Civil Cover Sheet : LexisNexis ; Westlaw​ : This cover sheet must be filed in conjunction with (not in replacement of) pleadings, supplements, and other required documents.

• Florida Will and Trust Forms Manual : KFF 144.A65 K3623

  • This resource is available at the Ave Maria School of Law Library.

• LexisNexis(R) Forms

  • 3.2.15: Preparation of Basic Agreement : Waiver of spousal rights form, including Homestead.

  • 21.4: Notice of Homestead : Notifies creditor that a specific property is claimed as Homestead under Article X, § 4.

  • 21.64: Election of Surviving Spouse to Take One-Half Interest of Decedent's Interest in Property : To be used when the Surviving Spouse decides to take a 1/2 interest in the Homestead rather than a life-estate.

• Nichols Cyclopedia of Legal Forms : KF 170.N53

  • ​This resource is available at the Ave Maria School of Law Library.

Causes of Action

• Florida Causes of Action : Ave Maria School of Law

  • Trusts and Estates : Lists actions that may be brought in a Florida court; topics include: Who May Make a Will, Individual Liability of a Personal Representative, and Improper Use of Power.

  • Legal Theories and Defenses : Provides definitions and defenses to possible claims.

• Florida Forms of Jury Instructions : Ave Maria School of Law

  • § 145.10: Issue As to Proof of Death of Decedent : provides different jury instructions and the cases that give the instructions authority.

  • § 145.11: Issue As to Status of Alleged Surviving Spouse : provides different jury instructions and the cases that give the instructions authority.

  • § 145.13: Issue As to Status of Child Allegedly Born Out of Wedlock to Deceased Father : provides different jury instructions and the cases that give the instructions authority.

• Florida 20th Judicial Circuit

  • Provides an overview of the types of cases that may be brought in Probate Court.

• How to Write and Use Jury Instructions in a Civil Case

  • Overview of Jury Instructions and advice on how to write them.

Attorney's Fees & Outcome Evaluation Tools

• Attorney Fee Awards 3d : Federal Cases

  • Basic Fee Award Considerations : Overview of the chapter that deals the basics of reasonable fees.

  • Fee Award Statutes : Goes to a link with a list of the statutes that affect fee awards.

• Case Evaluator

  • Allows you to search by jurisdiction and topic to see the who, what, where, and when of cases and the likelihood of certain outcomes.

• Expert Evidence Report

  • Saved search of "Homestead AND probate."

• Florida Statutes: Title XLII

  • Fla. Stat. § 733.106–Costs and Attorney's Fees : Online Sunshine ; LexisNexis ; Westlaw

  • Fla. Stat. § 733.6171–Compensation of Attorney for the Personal Representative : Online Sunshine ; LexisNexis ; Westlaw ; Bloomberg

• Lodestar Method : Court Determined

  • [Reasonable Number of Hours] x [Reasonable Hourly Rate (determined by field standard) = Attorney's Fees

• Verdict Search Florida Reporter : KFF 195.A59 V47

  • Provides means of determining worth of a case.

• Asset Protection in Florida (FLCLE) : Ave Maria School of Law

  • § 5.7 - Checklist for Establishment of Florida Domicile : Provides a checklist of how to establish Florida as a domicile.

• Florida Estate Planning : Ave Maria School of Law

  • Trial Court Documents : Provides access to the 10 most recent documents used in association with Estate Planning.

• Florida Estates Practice Guide : Ave Maria School of Law

  • § 14.120: Generally : Provides an overview and checklist of HOW to get a piece of property in an estate earmarked as Homestead.

  • § 10.200: Admission of Foreign Will to Record Under Fla. Stat. § 734.104 :Provides an overview and checklist of how to get a Foreign Will on the record in Florida.

• Litigation Under the Florida Probate Code (FLCLE) : Ave Maria School of Law

  • Homestead Litigation : Provides an overview of what needs to be done in the case of estates with Homesteads.

  • Intestate Succession : Provides an overview of what needs to be done in the case of Intestate Succession.

  • Will and Trust Contests : Provides an overview of what needs to be done in the case of Will contests.

Witnesses

• Federal Rules of Evidence : Cornell Law Institute ; LexisNexis ; Westlaw ; Bloomberg

  • Article VI: Witnesses : Cornell Law Institute ; LexisNexis ; Westlaw ; Bloomberg

  • Rule 803: Exceptions to the Rule Against Hearsay : Cornell Law Institute ; LexisNexis ; Westlaw ; Bloomberg

  • Rule 903: Subscribing Witness : Cornell Law Institute ; LexisNexis ; Westlaw ; Bloomberg

• Florida Rules of Evidence : Online Sunshine ; LexisNexis ; Westlaw

  • Ch. 92: Witnesses, Records, and Documents : Online Sunshine ; LexisNexis ; Westlaw

Evidence / Exhibits

• Federal Rules of Evidence : Cornell Law Institute ; LexisNexis ; Westlaw ; Bloomberg

  • Article IV: Relevance and Its Limits : Cornell Law Institute ; LexisNexis ; Westlaw ; Bloomberg

  • Article VII: Opinions and Expert Testimony : Cornell Law Institute ; LexisNexis ; Westlaw ; Bloomberg

  • Article VIII: Hearsay : Cornell Law Institute ; LexisNexis ; Westlaw ; Bloomberg

  • Article IX: Authentication and Identification : Cornell Law Institute ; LexisNexis ; Westlaw ; Bloomberg

  • Article X: Contents of Writings, Recordings, and Photographs : Cornell Law Institute ; LexisNexis ; Westlaw ; Bloomberg

• Florida Rules of Evidence : Online Sunshine ; LexisNexis ; Westlaw

  • Ch. 90: Evidence Code : Online Sunshine ; LexisNexis ; Westlaw

  • Ch. 92: Witnesses, Records, and Documents : Online Sunshine ; LexisNexis ; Westlaw

Motions

• Federal Rules of Civil Procedure : Cornell Law Institute ; Westlaw ; Bloomberg

  • Rule 50: Judgment as a Matter of Law : Cornell Law Institute ; Westlaw ; Bloomberg

• Florida Rules of Civil Procedure : Florida Bar Association ; LexisNexis ; Westlaw

  • These are the Rules of Civil Procedure in Florida.

• Florida Probate Rules : Florida Bar Association ; LexisNexis ; Westlaw

  • These are the official rules for Probate Court in Florida; the rules enumerated in this section can be found for free by clicking on the Florida Bar Link associated with this topic.

When Homestead meets the Intestacy Statutes, things get a bit more squirrelly ('twere that possible).  While there are certain moments when Homestead will descend per the Intestacy Statutes ("Statutes"), it is not a probate asset, the way the rest of the estate is.  As a result, though someone is an "Heir" as defined in the 732 sections of the Statutes, that does not mean that the person is entitled to inherit the property.  For instance, if a grandparent dies and leaves an adult child and a grandchild, the grandparent can leave the Homestead property to the grandchild without the property losing its exemption.  The reason it doesn't lose its exemption is that the person receiving the property is an "Heir-at-Law" ("Heir") under the Statutes.  However, the reason the adult child doesn't inherit the property first (instead of the grandchild) is that it has been devised and it is not a probate asset [how a piece of property can be "devised" (which means it has to go through probate) and still not be a "probate asset" (which means that is not subject to probate) is still beyond me!]. 

Because of the Constitutional restrictions on Homestead, the Statutes do not come into play unless (1) there is a minor child; (2); there is no minor child, Spouse, nor devise of the Homestead property, but there are Heirs; and (3) there is no minor child nor a Spouse, but there is a devise of the Homestead.

In the first instance, the Statutes define how 100% or 50% of the property is split amongst descendants in being at the time of the Decedent's death, depending on whether or not the Spouse elects to take a life-estate or 50% of the property in fee simple.

In the next case, the Statutes are predominant because they define who the Heirs are and dictate how the property is distributed to those Heirs. 

In the final situation, the Statutes determine whether or not the Homestead exemption remains intact.  For example, if a person to whom the property is devised is an Heir, then that person inherits the property and it cannot be sold to settle the debts of the Decedent's estate.  However, if the person inheriting is a friend, then the exemption disappears and the property can be sold to satisfy the Decedent's estate's creditors.  This distinction is drawn because Homestead is intended to protect the family of a Decedent, not the Decedent's friends.

Basically, the Intestacy Statutes are blended into the Homestead Analysis, but do not form the analysis itself.  As a result, one statute will apply and another will not, and a statute that applies one minute, won't the next.  As I said: squirrelly!

Under the Florida Constitution ("Constitution"), both men and women (i.e., competent adults) have a qualified right to devise their property as they see fit.  This means that people may devise their assets to practically anyone they want, unless the State of Florida ("State") has a legitimate government interest in stopping a particular type of devise that is reasonably related to that restraint.  Because of the State's interest in seeing that the Surviving Spouse ("Spouse"), minor children and family of a Decedent are not rendered homeless by a property owner's untimely demise, the government can and has used its qualified power to place a restraint on the devise of Homestead property.

With Homestead, the government has decided that if the Decedent has a minor child, then the property cannot be devised to anyone, pure and simple.  Until that child reaches the age of majority, the Surviving Spouse will always receive either a life-estate in the property or 50% of it in fee simple and the minor child (and any other children) will receive either a vested remainder in the property or the remaining 50%.  This ensures that any minors (for whom the state could end up financially responsible) have been provided for.

The restrain on devise loosens a little bit, if there are no minor children.  If this is the case and there is a Spouse, then the Homestead may be completely devised to the Spouse in fee simple.  If there is any other type of devise and there is no Spousal Waiver, then the devise is declared void and the property passes as if there had been no devise at all (please see Kelley's Homestead Paradigm).  This restriction prevents the Spouse from becoming homeless and needing to rely on the State.

Finally, if there is no minor child nor a Spouse, then the Homestead may be freely devised (i.e., the owner may leave the property to whomsoever he/she chooses).  However, this is where another protection for a Decedent's family is built in (though it is not required at this point).  If the Homestead is left to a friend or someone else who does not qualify as an "Heir-at-Law" ("Heir") under the Intestacy Statutes, then the exemption is lost and the property may be sold to settle the estate's debts.  Nevertheless, if the Homestead is left to an Heir, then the exemption remains intact and the property cannot be sold, thereby protecting the Decedent's extended family, as well.

All of this presumes that the creditors do not meet one of the Exemption Exceptions discussed elsewhere on this LibGuide.  However, even if the creditors do qualify, the main goal of this restriction on devise is to protect the family of a Decedent from losing its second-most valuable asset, too: a legitimate government interest.