By Christian Fahrig, Esq.

Article X, Section 4(c) of the Florida Constitution provides, in part, that “[t]he homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child.”

This restriction on devise applies even if the homestead property is held in a trust. In other words, a trust may be used to avoid probate, but a trust cannot avoid the Florida Constitution. This issue was addressed by the Third District Court of appeal in Aronson v. Aronson, 81 So. 3d 515, (Fla. 3d DCA 2012). In Aronson, a decedent left his homestead property, held by his trust, to his two sons, in accordance with the terms of the trust. However, at the time of his death, the decedent was married. The Court in Aronson found that, under these facts, the decedent’s homestead property was not subject to disposition through the trust. “At the moment of [decedent’s] death, his homestead property passed outside of probate, in a twinkle of an eye, as it were, to his wife for life, and thereafter to his surviving sons . . . .”

However, there are statutory exceptions and modifications to the Constitutional rule. For example, a spouse may waive his or her rights as a surviving spouse with respect to the devise restrictions under s. 4(c), Art. X of the Constitution if certain language is included in the deed which transfers the property to the trust. § 732.7025, Fla. Stat.

Another statute, § 732.401, Fla. Stat., directs how homestead property passes in the event a devise is made in violation of the State Constitution. In such cases, generally, homestead property would pass in the same manner as other intestate property. See §§ 732.102-103, Fla. Stat. But if the decedent is survived by a spouse and one or more descendants, the surviving spouse receives a life estate in the homestead, with a remainder interest passing to the descendants who were living at the time of the decedent’s death, per stirpes. Alternatively, the surviving spouse may elect to receive a one-half (50%) interest in the homestead, as a tenant in common with the remaining descendants who were living at the time of the decedent’s death, who receive the other one-half (50%) interest, per stirpes.

Note that Art. X, § 4(c), Fla. Const. and § 732.4015, Fla. Stat., provide that homestead may be devised to the owner’s spouse if there is no minor child(ren).

In accordance with the Florida Constitution and related applicable statutes, homestead property is exempt from probate, and therefore passes outside of probate. However, if homestead property is not titled with rights of survivorship, in trust, or with a life estate deed, an estate administration will still be necessary in order to obtain an Order Determining Homestead for purposes of creditor protection and clear title.

Florida’s Constitutional protections of homestead property are unique and an estate plan involving homestead property requires a unique understanding of the law. The attorneys at the Elder Law Center of Kirson & Fuller can assist you with your estate plan, including assisting you with a plan for your homestead property. We are here to help you. Contact the Elder Law Center of Kirson & Fuller today at 407-422-3017.