Protected Homestead Property in Florida
The Florida Constitution creates a prohibition on the devise (leave real estate to someone by the terms of a Will) of homestead property if the decedent is survived by a spouse or minor child. However, the decedent’s interest must qualify for the exemption from creditor’s claims for that restriction to apply. Pursuant to Section 4, Article X of the Florida Constitution, homestead property shall not be subject to devise if the owner is survived by a spouse or minor child. The owner of homestead real estate, joined by the spouse, if married, may alienate the homestead by mortgage, sale or gift, and, if married, may by deed transfer the title to an estate by the entirety with the spouse.
If not devised as permitted by law and the Florida Constitution, the homestead shall descend in the same manner as other intestate property. In lieu of a life estate . . .the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes (relating to a method of dividing the estate of a deceased person equally between the children of the deceased. The part of the estate that would have gone to one of the children who has died is divided among the children of this person.)