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Can a Step-Child Inherit Protected Homestead?

Homestead property under Florida has several different purposes – reduction on property taxes, creditor protection, and special rules for inheritance of homestead property.  When a decedent dies a resident of Florida and owned homestead property, there are a different set of rules in place than would apply to other property owned by the decedent.  If property is protected homestead and is inherited by relatives of the decedent, the property passes free of creditor claims of the decedent, and free of the expenses of administration.

Article X, Section 4 of the Florida Constitution states that homestead property:

shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon. 

Florida statute 731.201(33) defines property described by Art. X, §4(a)(1) and (b) of the Florida Constitution as “protected homestead.” Under Florida Law, the protected homestead is not a probate asset of the decedent’s estate.  See Fla. Stat. 733.608(1) and  also McKean v. Warburton, 919 So.2d 341, 347 (Fla. 2006).

 

Florida law also provides that the protected homestead is not subject to administrative expenses of the estate.  Engelke v. Estate of Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006). Protected Homestead is also not subject to creditor claims. Id. See also Art. X, § 4(a)(1), Fla. Const.  The Florida Constitution further provides that such exemptions inure to the heirs of the owner. Art. X, § 4(b), Fla. Const.  An heir is defined as a person who is “entitled under the statutes of intestate succession to the property of the decedent.” Fla. Stat. 731.201(20).  Therefore, even in a testate estate, we look to the statute of intestacy to determine who is an “heir” that can inherit protected homestead.  

 

The Supreme Court of Florida has held,  that the word “heirs,” when determining entitlement to the homestead protections against creditors, is not limited to only the person or persons who would actually take the homestead by law in intestacy on the death of the decedent.  Instead, “the [Florida] Constitution must be construed to mean that a testator . . .may devise the homestead . . .to any of that class of persons categorized in section 732.103.”  Snyder v. Davis, 699 So.2d 999, 1000 (Fla. 1997) (emphasis added). 

Fla. Stat.732.103 includes as “heirs” the following persons: descendants of the decedent, decedent’s father or mother, decedent’s brothers or sisters and their descendants, paternal and maternal kindred of the decedent (this includes grandfathers and grandmothers, uncles and aunts and their descendants), and the kindred of the last deceased spouse of the decedent and his or her kindred.

Therefore, even a step-child can inherit protected Homestead.

 

One example is if a homestead is specifically devised in a will to two children and one step-child, it is possible for all three individuals to receive the protected homestead free of creditor claims, administrative expenses, and no portion of the homestead will be part of the decedent’s estate.  The order of intestate succession is not necessarily relevant to the determination of who can be specifically devised protected homestead.  However, remember that if there is a surviving spouse or minor child, the devise of the homestead may be restricted.

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Broward County (Ft. Lauderdale)

Natasha M. Dalton

Pasco County (Port Richey)

Matthew Weidner

Sarasota County

Dawn Bates-Buchanan

Palm Beach County

Nicole Quattrocchi

Duval County (Jacksonville)

Long H. Duong

St. Lucie County

Romaine Brown

Orange County (Orlando)

Philip W. Gunthert

Marion County (Ocala)

Katina Pantazis

Pinellas County (Clearwater)

Matthew Weidner

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Gregory J. Nussbickel

Miami

Niuris Bezanilla

Hillsborough County (Tampa)

R. Todd Burbine

Volusia County (Daytona)

Heather Caeners

Martin County (Stuart)

Jon L. Martin

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Scott Kuhn

Sumter County (The Villages)

Matthew Weidner

Polk County (Lakeland)

Lesly Vaillancourt