Blogs from October, 2011


Marriage and Homestead in the Florida Probate Process

What if my deceased spouse and I were not living together at the time he or she passed away?  Do I still have Florida homestead protection from creditors?

I recently had a case where this issue arose.  Although these questions may appear to be ripe for further problems and complex factual disputes regarding the quality and status of the marriage, Florida statutes and courts have made this issue fairly clear.  If you are married at the time of your spouse’s death, you may invoke your surviving spousal rights for homestead protection on your deceased spouse’s home.  Florida does not recognize separations or any other problems that may have existed during the marriage in making a determination of homestead status.  In Florida, you are either married, or you are not.  As they say, “you cannot be a little bit pregnant.”

A surviving spouse’s homestead rights stem from the Florida Constitution, specifically, Article X, section 4, which states in relevant part:

(a)    There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for the house, field or other labor performed on the reality, the following property owned by a natural person:

(1) a homestead, … is located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family;

(b) These exemptions shall inure to the surviving spouse or heirs of the owner.

(c) The homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child….

The court in In re Colwell, 196 F.3d 1225 (Fla. 4th DCA, 2009) addressed the homestead statute.  In this case, the spouses had been separated for over three years and had even gone to the point of acquiring separate residences.  Nevertheless, the court held that each spouse could claim separate homestead exemptions even though they were separated and lived in separate homes.  As a result, the creditors of the deceased spouse that had filed claims against the estate could not seek relief against the homestead real property.

Florida courts go to great lengths to protect the surviving spouse, specifically during probate and estate proceedings. The loss of a loved one can be an extremely difficult process; it will be in your best interest to consult with an attorney (for legal and streamlining purposes) to unclutter the details of the Florida Probate Code.


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