Homestead Rights in Florida are one of the protections and benefits that real estate buyers need to ask their attorney/lawyer to explain when looking at property in St. Augustine Beach and Ponte Vedra, because it can be an enormous benefit over retiring or moving to another state.
There are three separate ways Florida’s Homestead provides protections: (1) asset protection; (2) reduced property taxes; and (3) protection of surviving spouses and minor children.
As for typical notions of homestead property exemption, under Florida’s Save Our Homes Act, the assessed value of a Florida Homestead is restricted to an increase of no more than 3% per year. Also, there are exemptions for the first amount of taxable value that you may also qualify for . . . importantly, there is a filing deadline each year to qualify so make sure you do not delay in filing with the St. Johns County Property Appraiser’s Office.
The Florida Constitution exempts homestead property from levy and execution by most creditors. So long as the property qualifies as homestead, the amount that can be protected is not limited, which makes the Florida Homestead an excellent asset protection vehicle. Even if the purchase of the homestead may have been designed to defeat creditors, the protection can still apply.
Under the Bankruptcy Reform Act of 2005, however, debtors in bankruptcy may lose all or a portion of the homestead protection. In bankruptcy, homestead protection is capped at $125,000, unless the debtor occupied the Florida homestead property and previous Florida homestead properties for 1215 days prior to the bankruptcy filing. Also, transfers into Florida Homestead within 10 years intended to defraud creditors may be challenged by the bankruptcy trustee and in the Northeast Florida area often are.
But, beware, Federal creditors, such as the Internal Revenue Service, mortgage holders, and persons holding mechanics liens on Florida homestead property are not restricted by the Florida homestead provisions.
If a Florida resident passes away owning a Florida Homestead in his or her own name, if the resident had minor children, the minor children are entitled to the entire property, or, if the resident was married, to no less than a remainder interest in the property. A surviving spouse is entitled to no less than a life estate in Florida Homestead property. The homestead provisions can be a trap for the unwary, especially for those with estate plans drafted while a resident of another state. For example, a person owning a house in New York and a condominium in Florida may have decided, while a New York resident, to leave the house to his spouse and his condominium to a daughter from a first marriage. If the person retires to Florida as a resident and then passes away, his spouse will inherit the house under the terms of the will and then be given a life estate in the Florida condominium.
At St. Johns Law Group, we can answer the questions you may have about these and other real estate and estate planning matters. In fact, we have attorneys based in St. Augustine that devote their practice to real estate and attorneys focused on estate planning.