Homestead At Death Of Married Person

The word “homestead” has a number of meanings in Florida. The most well-known concept involves a property tax reduction. Another unique feature of homestead is the constitutional provision protecting homestead for spouses of a living homeowner. This law prohibits an owner of homestead property from transferring or mortgaging homestead property without joinder by the other spouse who is not an owner. Another benefit of homestead in Florida is protection from general creditors. Generally, a judgment holder other than the mortgagee can collect on other non-exempt assets, but not the homestead.
The most complicated use of the word involves restrictions and protections that arise when a married homeowner dies, and the surviving spouse is not a co-owner of the homestead. The Florida Constitution provides that if a decedent validly devises homestead property, or if the law passes homestead property by operation of law, to heirs at law (which means family members of any level), the property passes directly to those beneficiaries free of the claims of creditors of the deceased owner.
In that regard, the Florida constitution and statutes also provides that if a decedent leaves a spouse or minor child, the decedent cannot leave the home to anybody by will or trust. If there is no minor child, the decedent can leave the property to the surviving spouse, but if he or she has not done so, the property passes automatically to the spouse for life, and to the decedent’s children after the spouse dies.
Sometimes the surviving spouse and children want to sell the home, or divide the home, and the calculation of the life estate value is complicated and confusing. Thus, if a surviving spouse is entitled to receive a life estate as described above, the spouse can elect to receive a half-interest instead, which results in the decedent’s children sharing the other half-interest.

Attorney Michael A. Pyle, of Pyle, Dellinger & Duz, PLLC. 1655 North Clyde Morris Blvd., Ste. 1, Daytona Beach. Phone: 386.615.9007. e-mail: mikep@pylelegal.com or website: www.pylelegal.com