Can an Irrevocable Trust Own Homestead Property?

The answer is no. A home owned by an irrevocable trust cannot qualify for homestead protection.

The Florida Constitution protects residences owned by natural persons. Although there is a case that denies homestead protection to a property owned by a living trust, most courts have protected a residence in a living trust.

A living trust is closer to a “natural person” than an irrevocable trust. One key factor that makes a living trust created for estate planning equal to ownership by a natural person is the settlor’s retained rights to revoke or amend the trust. Transfer to a living trust is not deemed to be a completed gift to the trust beneficiaries whether they be the settlor himself or other family members.

An irrevocable trust is a completed gift to beneficiaries. It can not be undone, and the settlor cannot amend the trust agreement.

Even where the settlor resides in the trust property and is the sole beneficiary of the irrevocable trust, property ownership by an irrevocable trust is more easily distinguishable from ownership by a natural person than property ownership in a revocable living trust.

In my opinion, owning a residence by a living trust should not undermine homestead protection. I suspect that a court would not afford homestead protection to an irrevocable trust, even if the settlor lives in the property and is the sole trust beneficiary.

Jon Alper

About the Author

I’m a nationally recognized attorney specializing in asset protection planning. I graduated with honors from the University of Florida Law School and have practiced law for almost 50 years.

I have been recognized as a legal expert by media outlets such as the New York Times and the Wall Street Journal. I have helped thousands of clients protect their assets from creditors.