Florida homestead

Homestead protection has been in the Florida Constitution since 1868, and the language has stayed remarkably stable through every revision since, including the 1968 rewrite that produced the current Article X, Section 4.

That one section does three separate jobs, and people who confuse them get hurt. It grants a property-tax exemption. It grants an exemption from forced sale by creditors, with no cap on value and only three exceptions — taxes and assessments, obligations for the purchase, improvement, or repair of the property, and obligations for house or field labor performed on it. And it imposes restrictions on alienation and devise.

The first two are the shield. Everybody in Florida has heard of them. The third is the trap, and almost nobody has, until a probate judge explains it.

The trap is a single sentence: the homestead shall not be subject to devise if the owner is survived by a spouse or a minor child, except that it may be devised to the spouse if there is no minor child. That is Art. X, §4(c), restated in Fla. Stat. §732.4015. It does not care what your will says. It does not care what your trust says. It is not a rule of construction that yields to intent. It is a limit on power.

How far the protection actually reaches

Two Florida Supreme Court decisions define the outer edge of the shield, and both went the homeowner's way.

In Snyder v. Davis, 699 So. 2d 999 (Fla. 1997), Betty Snyder devised her homestead to her granddaughter Kelli. Kelli's father — Betty's son Milo — was alive, which meant that under the intestacy statute Milo, not Kelli, would have been the heir. The personal representative argued that the exemption from forced sale therefore did not inure to Kelli, and moved to sell the house to pay creditors, administration costs, and cash bequests. The Fourth District agreed with him.

The Florida Supreme Court did not. It held that the exemption passes to a devisee who is within the class of persons who could take under the intestacy statute, whether or not that person would actually have been the heir on the date of death. A granddaughter is in the class. The house was protected.

In McKean v. Warburton, 919 So. 2d 341 (Fla. 2005), Henry Pratt McKean II died leaving no spouse and no minor children. His will made cash bequests — $20,000 to one person, $150,000 to his nephew Peter Warburton — and left the residue to his four half-brothers. He owned a condominium that was his homestead; it netted $141,000. Everything else he owned came to about $10,000, against roughly $14,000 in debts plus fees.

The certified question was whether unspecifically-devised homestead passes to general devisees before residuary devisees. The Supreme Court answered no. Protected homestead exists outside the probate estate; a residuary clause is a sufficiently precise expression of intent to carry it; and only an explicit direction to sell the homestead and pour the proceeds into the general estate strips the protection. The $141,000 went to the four half-brothers. The $150,000 bequest got nothing from it.

A trust cannot outrank a constitution

Now the other side, and the case that made it famous.

In Aronson v. Aronson, 81 So. 3d 515 (Fla. 3d DCA 2012), Hillard Aronson created a revocable trust in July 1996 and deeded a Key Biscayne condominium into it as trustee. In December of that year he deeded the same unit to his wife Doreen by quitclaim — a deed the Third District invalidated in an earlier appeal in 2006. He and Doreen later moved into the condominium, and it became his homestead. He died survived by Doreen and by two adult sons from a prior marriage.

The trust said Doreen would take a life interest and the sons would take the remainder. The sons, as successor trustees, moved to sell.

They could not. Because the unit was Hillard's homestead and he was survived by a spouse, it was not subject to disposition by the trust at all. Under §732.4015(2), a “devise” includes a disposition by trust of the portion of the trust estate that would have been the grantor's homestead if titled in his own name, and an “owner” includes the grantor of a revocable trust. Putting the house in a trust does not move it outside the constitutional restriction; it just changes whose signature is on the deed.

The Third District's phrase for what happened at the moment of death was “in a twinkle of an eye.” The homestead passed instantly, outside the trust and outside probate, to Doreen for life with a vested remainder in the two sons — and from that instant, the trustees had no power or authority over it whatsoever.

What actually happens when you devise it anyway

The devise does not fail into the residuary. It does not fail into intestacy generally. It is replaced by a specific statutory outcome under §732.401.

• Surviving spouse and descendants. The spouse takes a life estate, with a vested remainder to the decedent's descendants in being at the date of death, per stirpes. That is the default.
• Or the spouse elects out. Since 2010, under §732.401(2), the surviving spouse may instead elect an undivided one-half interest as tenant in common, with the other half vesting in the descendants per stirpes. The election must be filed for recording within 6 months after the decedent's death and during the spouse's lifetime, and it is irrevocable once made.
• Surviving spouse and no descendants. The homestead may be devised to the spouse. If it was not, it descends to the spouse.
• A minor child survives. The homestead may not be devised at all — not even to the spouse. This is the hardest version of the rule, and it catches young families constantly.
• Tenancy by the entireties and joint tenancy with survivorship are outside §732.401 entirely. The survivor takes by title, and the descent statute never engages.

The 2010 election exists because the life estate is frequently a bad deal for the person it was meant to protect. A life tenant carries the taxes, the insurance, the maintenance, and the association dues, cannot sell without the remaindermen's cooperation, and cannot easily borrow against the property. A surviving spouse can end up house-rich, cash-poor, and legally tied to their late spouse's adult children. Six months to decide, and then never again.

The two paths that actually work

There are exactly two clean ways to direct Florida homestead somewhere the restriction would otherwise block, and both have to happen while everyone is alive.

The waiver. Homestead devise rights can be waived by the spouse — in a prenuptial or postnuptial agreement under §732.702, or, more simply, in the deed itself under §732.7025, which supplies the operative sentence: By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse from devising the homestead property described in this deed to someone other than me. Note the limits. That waiver does not surrender the creditor protection, and it does not let the owner mortgage, sell, or give the property away without the spouse's joinder. It waives one thing: the restriction on devise.

The lifetime transfer. Under §732.4017, an inter vivos transfer of homestead — including a transfer into a trust — is not a devise, provided the transferor retains no power, alone or with anyone else, to revoke or revest the interest. A revocable trust fails that test by definition, which is exactly why Aronson came out the way it did. An irrevocable transfer can succeed. So can an enhanced life estate deed, the Florida “lady bird” deed, which conveys the remainder now while leaving the owner full control for life.

If neither applies, and a spouse or minor child will survive, the honest planning move is to stop fighting the restriction and route the intended gift through a different asset — life insurance, a brokerage account with a beneficiary designation, or the residuary — while the homestead goes where the Constitution sends it.