(6) If none of the foregoing, and if any of the descendants of the decedent’s great-grandparents were Holocaust victims as defined in s. 626.9543(3)(a), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the descendants of the great-grandparents. 2d 309, 313 (Fla. 1953). The surcharge proceeding against Monks may have been entirely appropriate, and certainly Monks will be personally liable for the judgment against her. 4(c), Article X , of the Florida Constitution and F.S. If the testator does have children, the spousal homestead rights in Florida with surviving children and a surviving spouse is a life estate in the homestead for the spouse with the children receiving the remainder, or a fifty-percent interest in the property to the spouse held as a tenancy in common (50%) with the surviving kids. Prior to the enactment of the revised Florida Homestead statute, if the Homestead was not devised in a way that was permitted by Florida law, the surviving spouse automatically received a life estate in the Homestead property and any minor children received a vested remainder in the property. X, § 4, Fla. Olesky v. Nicholas, 82 So. Article X, Section 4 of the Florida Constitution defines “homestead” property. Public pensions | The surviving spouse may elect to take a 1/2 interest as tenant in common rather than a life estate, discussed below. Immigration | If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law. For purposes of the code, real property owned in tenancy by the entireties or in joint tenancy with rights of survivorship is not protected homestead. If the will devises the decedent’s homestead to nonqualified beneficiaries, by law, it has subjected that property to the claims of creditors (the exemption will not inure) and thereby to probate administration, just as if the will had said “I devise my ‘homestead to my good friend Bessie, however I direct that my personal representative shall take possession of that property and shall use it for purposes of … * * * From that moment forward, the trustees had no power or authority with respect to the former marital home. 2d 375 (Fla. 1978) (homestead property can be partitioned), “We hold, with the First District, that our constitutional provisions allow the partition and forced sale of homestead property upon suit by one of the owners of that property, if such partition and forced sale is necessary to protect the beneficial enjoyment of the owners in common to the extent of their interests in the property.”, White v. Theodore Parker, P.A. Section 732.702, Florida Statutes, provides in part, that “[t]he rights of a surviving spouse to . Const. As provided in the Florida Constitution, homestead property cannot be freely devised if the owner is survived by a spouse or minor children. Wilson v. Fla. Nat’l Bank & Trust Co., 64 So. Ballot access for parties | 2d 341 (Fla. 2005) (if homestead not specifically devised it goes to the residuary devisees) (only when the testator specifies in the will that the homestead is to be sold and proceeds divided does homestead lose protected status), “[W]here a decedent is not survived by a spouse or minor children, the decedent’s homestead property passes to the residuary devisees, not the general devisees, unless there is a specific testamentary disposition ordering the property to be sold and the proceeds made a part of the general estate.”, Monks v. Smith, 609 So.2d 740 (Fla. 1st DCA 1992) (Equitable principles cannot be used to deny homestead status), “However, “the homestead protection has never been based upon principles of equity.” Public Health Trust of Dade County v. Lopez, 531 So. If the surviving spouse was bequeathed a life estate, the bequest is valid and the remainder interest can be bequeathed to anyone. The homestead is in no wise an asset of the estate of a decedent.”, Chames v. DeMayo, 972 So. Court of Appeals | If there is no surviving spouse and no minor children, the Florida homestead passes just like any other asset according to Florida’s law of intestacy. Amongst these are certain restraints on devise, that is, how you can give your homestead away at death. House of Representatives | Protected Homestead. at 1099. However, since homestead is a constitutionally protected right, any waiver must be made “knowingly, voluntarily, and intelligently” and waivers of the homestead protections cannot be made in an unsecured agreement. However, receiving such fees requires some extra steps, by either filing and perfecting 733.608 lien, or by petitioning for fees for extraordinary services. In a 2014 case from Florida’s Fourth District Court of Appeals, the appellate court ruled that boilerplate language in a deed operated as a waiver of the spouse’s homestead rights. See Wilson v. Fla. Nat’l Bank & Trust Co., 64 So. This amendment modified Article X, Section 4 of the Florida Constitution to clarify language allowing for the willing of property to a spouse if there is no minor child. § 733.607(1), which provides that: Except as otherwise provided by a decedent’s will, every personal representative has a right to, and shall take possession or control of, the decedent’s property, except the protected homestead. The husband then conveyed his one-half tenant in common interest to a qualified personal residence trust (QPRT). Taxes & Your Florida Homestead One significant benefit of a Florida homestead involves taxes. Environment | The widow became responsible for the expenses of the property, and, of course, remains so for as long as she remains a life tenant. by operation of law, bypassing probate.6 Florida homestead property can be owned as JTROS and TBE, and such ownership does not violate the Florida Constitutional restrictions on devise and decent of homestead property.7 A life estate also avoids probate. Every year spouse tenant in common ( TIC ) Election, especially in second marriages, or device a... An asset of the person whose property was selected his homestead property vest at death 31 2004... I Sign a waiver of homestead contained in an unsecured agreement is included! Descend to the decedent of restricted homestead property be filed ” can be at with! Estate and vested remainder interest can be bequeathed to anyone exemption–including DeMayo–can So! Interest in the same manner as other intestate property descendants in being and the remainder interest and in. 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