The Florida Homestead - Three Different Contexts

The concept of a Florida "homestead" arises in three different contexts under Florida law:

1. exemption from taxation per Art. VII, Section 6, Fla. Constit.
2. exemption from forced sale before and at death per Art. X, Section 4(a)-(b), Fla. Const. and 
3. Restrictions on devise and alienation, Art. X, Section 4(c), Fla. Const.

It should be noted that the definition of homestead property for Article VII, section 6 purposes (taxation) is not the same as Article X, section 4 (forced sale and devise and alienation).

Art. X, Section 4 Homesteads 

Neither the Florida Legislature nor the Florida Constitution provide a definition of what is homestead property for purposes of Art. X, Section 4 (a)(forced sale and devise and alienation). Florida courts hold that the following requirements must be satisfied for property to be determined as homestead property:

• the property must be owned by a "natural person"
• the person claiming the exemption must be a Florida resident who establishes that he intends to make the real property his permanent residence
• the person claiming the exemption must establish that he is the owner of the property and 
• the property claimed as the homestead must satisfy the size and contiguity requirements of the constitution. 

Florida courts also have held that the Florida Constitution does not limit the types of estates that are eligible for homestead status. Therefore, the exemption may generally attach to any estate in land whether it is a freehold or lesser estate. A life estate has been expressly found to be among the property interests eligible for homestead status. Florida court have held that real property held in trust can be impressed with the character of homestead, including revocable and irrevocable trusts.

History of the Constitutional Homestead 

A provision protecting homestead property first appeared in the Florida Constitution of 1868. Art. IX, Section 1, Fla. Const. (1868). Historical materials indicate that it was originally inspired by a desperate attempt by Floridians to repel the invasions of "Yankee carpetbaggers" at the end of the Civil War. The limitation on devise and alienation first appeared in the 1885 Constitution. Art. IX, Section 1-3, Fla. Const. (1868).(305) 891-4055 - Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankrkuptcy Cases and Mortgage Modifications