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How Florida’s Homestead Laws Apply to Probate

Generally speaking, Florida law is very friendly to debtors and provides a number of protections and remedies that limit the rights of creditors to pursue an individual's property in satisfaction of an unpaid debt. One of the most generous of these laws is the homestead. Under Florida law, a person's home, if properly qualified, is protected from attachment by creditors. This means that, with the exception of those who hold a mortgage lien against the property, a creditor cannot force you to sell your home to pay a debt. However, the homestead law also has some important implications during the probate process.

By obtaining homestead protection for your home, you also limit your right to devise your home in your will. Instead, Florida law potentially takes over to dictate who is entitled to the property in the event of the owner's death:

  • If the owner is survived by one or more minor children, he or she loses the right to devise the homestead property by will.
  • If the owner is survived by a spouse but no minor children, he or she may devise the property only to the surviving spouse.
  • If the owner does not devise the homestead, his or her surviving spouse receives the right to live in the house for the remainder of his or her life, also called a life estate, with a remainder interest for the owner's descendants.
  • If the spouse chooses, he or she can also elect to receive an undivided ½ interest in the property in lieu of a life estate, with the other half going to the owner's descendants in equal shares.

The impact that homestead status can have on estate planning is easy to overlook. However, there may be significant unintended consequences, especially in situations involving an estranged spouse. This is just one of the examples of the many peculiarities of our state's laws of probate and estates that makes the assistance of a qualified Florida estate planning attorney indispensable.

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