Homestead Protection and Nursing Homes

Moving to a nursing home or assisted living facility does not automatically forfeit Florida homestead protection, but it can. The outcome depends on whether the homeowner has permanently abandoned the property or intends to return. This distinction matters because a homestead that loses its exempt status becomes immediately vulnerable to any judgment liens previously recorded in the county.

Temporary Absence vs. Permanent Abandonment

Florida law is clear that a homeowner can temporarily leave a homestead without losing protection. Homestead status survives any period of absence so long as the owner intends to return to the property as a permanent residence. Courts have applied this principle to homeowners who travel, work in another state, serve prison sentences, or undergo medical treatment away from home.

The same principle applies when a homeowner enters a nursing home or assisted living facility for medical reasons. If the move is temporary and the homeowner intends to return home when their health improves, the property retains its homestead character. Courts generally presume that people who enter care facilities intend to recover and return home.

The difficulty arises when the move becomes permanent. If the homeowner’s physical or cognitive condition has deteriorated to the point where returning home is medically unrealistic, a court may find that the homestead has been abandoned. The legal question is not whether the homeowner will return but whether the homeowner genuinely intends to return. A homeowner with advanced dementia or a terminal diagnosis may not be able to form or express that intent, and the surrounding circumstances may indicate that the move is irreversible.

How Courts Evaluate Intent

No single factor determines whether a move to a care facility constitutes abandonment. Courts consider the totality of the circumstances, including whether the homeowner maintains the property or allows it to fall into disrepair, whether the homeowner rents the property to a third party, whether the homeowner’s family continues to use or maintain the home, whether the homeowner has purchased or moved into a new primary residence, and the medical prognosis for the homeowner’s condition.

Each additional week of full-time residence in a care facility without clear evidence of intent to return makes the homestead defense more difficult. A homeowner who moves to a nursing facility, rents out the house, and stops paying for maintenance presents a much weaker case than one whose family keeps the house ready for the homeowner’s eventual return.

Protecting the Homestead Before It Is Too Late

Families concerned about losing homestead protection for an aging parent should consider acting while the property still qualifies as homestead. The most common strategy is for the homeowner to deed the property to children or other family members while the homeowner is still living in the home or while the move to a care facility is still reasonably temporary.

A transfer of homestead property to family members is not a fraudulent conveyance under Florida law because the property is already exempt from creditors at the time of transfer. Transferring exempt property to a third party cannot defraud creditors because the creditors had no right to the property in the first place.

Timing is critical. If the homeowner waits too long and a court later determines that the homestead was abandoned before the transfer, the transfer could be challenged as a fraudulent conveyance of non-exempt property. The longer the homeowner resides in a care facility before executing the deed, the greater the risk that a court will find abandonment had already occurred.

Interaction with Medicaid

Families should be aware that transferring homestead property may have consequences for Medicaid eligibility. Medicaid’s long-term care program imposes a five-year look-back period on asset transfers. A homeowner who deeds the property to children and later applies for Medicaid nursing home benefits may face a penalty period during which Medicaid will not pay for care. The asset protection analysis and the Medicaid planning analysis often point in different directions, and families should evaluate both before making a transfer.

Homestead Protection After Death

If the homeowner dies while still maintaining homestead status, the property passes to the surviving spouse or heirs free of the decedent’s creditor claims regardless of whether the homeowner was physically living in the home at the time of death. Courts have consistently held that moving to a care facility for medical reasons does not constitute abandonment for purposes of homestead protection after death, provided the homeowner had not formed the intent to permanently leave.

This is an important distinction. A homeowner who enters a nursing home and dies six months later without ever returning to the property will likely still have the property treated as homestead for purposes of the descent and creditor-protection provisions of Florida homestead law. The presumption that the homeowner intended to return home is stronger in the context of death than in the context of a living debtor attempting to shield assets from current creditors.