Florida homestead legal protection

What Is Florida Homestead Law?

Florida law allows a Florida resident to completely protect their homestead from judgment creditors. The law exempts an unlimited amount of equity in homestead property. The property must be 1/2 acre or less if it is located inside the city limits, but it can be up to 160 acres in an unincorporated county.

Under Florida law, a judgment creditor cannot force the sale of a debtor’s homestead to satisfy a money judgment. A recorded judgment does not attach to or become a lien on a debtor’s homestead property.

Courts have liberally expanded the reach of Florida homestead protection to include more than just a single-family house. Condominiums, mobile homes, and manufactured homes are all afforded homestead protection from judgment creditors in Florida.

Florida law also allows a homestead tax exemption. The homestead exemption reduces the taxable value of a primary residence by up to $50,000 and caps the annual increase at 3%.

How Florida Homestead Law Works

The Florida homestead is the most protected asset in the entire country. The law protects unlimited value in the debtor’s Florida homestead property. Some judgment debtors living in other states will move to Florida to purchase a Florida homestead to protect their hard-earned money from collection by a creditor.

Because the homestead law is found in the Florida Constitution, it is more enduring than any of Florida’s statutory protections that are subject to political changes and legislative repeal. It is harder to convince voters to repeal an important constitutional benefit than to change a state statute through legislation. Additionally, future laws enacted by the Florida legislature cannot override or diminish exemptions provided by the Florida Constitution.

The protection from civil creditors in Florida is not limited by the value of the homestead, only by the size of the lot. The transfer of money into a Florida homestead cannot be attacked as a fraudulent conveyance so long as the money used to purchase or improve the home was not originally obtained through fraudulent conduct.

What Is Florida Homestead Property?

Florida homestead property is a natural person’s principal residence in the state of Florida, consisting of no more than one-half acre of contiguous land in a municipality or 160 acres in an unincorporated county. All contiguous property is included in the homestead, even if it has separate legal descriptions and tax numbers.

Homestead property is best protected if the owner’s family uses the property. For example, maintaining children’s playthings or a storage shed on adjacent property improves its protection.

Whether the homestead is in the city or the county, the square footage of the physical residence or the value of the property are not restricted.

If your homestead is on a lot that exceeds the ½ acre or the 160-acre size limitations, then the homestead protection will be allocated pro-rata to the total property value.

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Example of Florida Homestead Lot Size Limits

George and Martha live on a one-acre lot in Tampa, Florida. The property is worth approximately $500,000.

The Constitution affords protection only to one-half acre lots in a city. The homestead protection would apply to 50% of the $500,000 value, or $250,000. George and Martha may not survey the lot, allocate the protected portion to the physical dwelling, and then allocate the unprotected portion to the less valuable backyard. A creditor can record a judgment against the property and force its sale. The creditor would get $250,000 of the sale proceeds applied to its judgment.

florida homestead

How to Qualify for Florida Homestead Protection

To qualify for the Florida homestead protection, you must be a natural person, personally occupy the property, and have a beneficial interest in the property.

1. Be a Natural Person

You must be a Florida resident to qualify for the Florida homestead protection.

Homestead protection is limited to natural persons with a legal interest in the property. To qualify for Florida homestead protection, a person must own all or part of the property’s legal title. The title can be held in your personal name or the name of your revocable living trust.

A property owned by an LLC, corporation, irrevocable trust, or other legal entity cannot qualify for the Florida homestead exemption because these legal entities are not natural persons. This is true even if you are the sole owner of the corporation or LLC.

2. Personally Occupy the Property

To qualify for homestead protection, you must occupy and reside in a property. Occupying means at least moving into the home with your principal belongings.

You may own other residences and temporarily reside elsewhere. You may own multiple homes for personal use, but only your primary home can qualify for Florida homestead protection.

You do not lose the homestead protection if you travel away from your primary residence for an extended time. Many people with Florida homesteads temporarily stay in a hotel for an extended vacation, attend out-of-state school, or live in a second home for a season. But no matter how long you are gone, you must intend to return to your Florida homestead as your primary residence.

You cannot claim a homestead exemption on a home you are building or a home you intend to purchase. You must own the home and physically occupy the homestead as a primary residence.

To qualify for Florida homestead protection, a person must hold legal title to the property or have a beneficial interest in it. The title can be held in your personal name or the name of your revocable living trust.

A property owned by an LLC, corporation, irrevocable trust, or other legal entity cannot qualify for the Florida homestead exemption. This is true even if you are the sole owner of the company.

What Is the Florida Homestead Exemption?

The Florida homestead exemption is a state tax deduction for homestead properties. The exemption reduces the assessed value of a home by $50,000 for property tax purposes. It also caps the increase in the assessed value of the homestead equal to 3% or the annual Consumer Price Index (CPI), whichever is less.

The homestead exemption statute is found in section 196.031 of the Florida Statutes. The homestead tax exemption is different than the homestead exemption from creditors. Do not confuse the Constitutional homestead protection with the homestead tax exemption.

The homestead exemption from creditor judgments is automatic, but the Florida homestead tax exemption also requires a filing with the county. You must reside in your home on January 1 of the calendar year to qualify for the tax exemption.

These tax exemption requirements are irrelevant to the asset protection of the homestead. You do not have to file any documents to qualify for homestead protection from judgment creditors.

How to Qualify for the Homestead Exemption

There are four ways to qualify for the Florida homestead exemption:

  1. You must be the property owner.
  2. The property must be your permanent residence.
  3. You must have lived in the property as of January 1 of the calendar year you want the exemption to apply.
  4. You cannot have rented out the property for more than 30 days in the calendar year.

Required Documentation

Here are the documents you will need to submit when applying for the homestead tax exemption in Florida:

  • A valid Florida driver’s license.
  • A copy of the recorded deed or tax bill.
  • Vehicle registration.

How Long Before the Homestead Exemption Applies?

There is no waiting period for protection under Florida homestead law. The protection applies the day you first occupy the house with the intent to make your house your permanent Florida residence.

Some people think you must live in a Florida home a certain number of days each year to qualify for the homestead exemption. This belief is inaccurate.

Immediately upon moving into a property, a person can form an intent to maintain it as their permanent residence.

There are state income tax principles in other states that require some people to live in Florida more than 180 days per year to avoid income taxation in another state. These income tax issues are created by the laws of the taxing states and not Florida homestead law. There is no annual Florida residency requirement to avoid income tax in another state.

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Effect of a Civil Judgment Before Occupying Property

A civil judgment issued before occupancy will deprive you of homestead protection. In order to exempt a home from recorded judgments, you must actually occupy a home with the intent to maintain it as a primary, permanent residence before a civil money judgment is recorded in the county where the property is located. Otherwise, a judgment will become a permanent lien on the property you own before the property becomes an exempt homestead. Moving into a new homestead after a judgment is recorded will not erase the prior recorded judgment lien.

If you do not have legal title to the future homestead, a civil money judgment will not be a lien on the property and will not deprive you of a homestead exemption. A judgment will not affect homestead protection of a home under contract to buy from a private party or a builder prior to closing when your name is not yet on the legal title.

florida homestead law guide

Exceptions to Florida Homestead Protection

There are a few exceptions to the homestead exemption from creditors. The Constitution states that a Florida homestead is not protected from the following debts:

  • Liens on the homestead voluntarily given to secure a loan, such as a mortgage to purchase your home or a home equity loan.
  • Mechanics liens for goods and services provided to build, repair, or improve your homestead.
  • Liens recorded prior to homestead acquisition to secure payment of homeowner association dues and special assessments.
  • Property taxes, state taxes, and IRS tax liens.

There are no other exceptions to the homestead exemption listed in the Florida Constitution. In addition, because the state constitution only allows these exceptions, the Florida legislature cannot create additional exceptions to homestead protection.

florida homestead exempt from creditors

Joint Ownership of a Florida Homestead

Joint ownership of a homestead can jeopardize Florida homestead protection when one co-owner does not reside in the property. A judgment against the non-resident owner will be a lien placed on their interest in the property. A judgment creditor of the non-resident co-owner can force the property to be sold.

For example, assume a married couple adds their child on the title to their homestead for estate planning purposes because they want ownership to pass to the child when the parents die. If the child resides elsewhere, they are not entitled to homestead protection of their interest in the parents’ residence.

A civil judgment against the child would become a lien placed on the child’s interest in the home. In that situation, the child’s judgment creditor could levy upon the child’s ownership interest in the parents’ house and force the house to be sold at auction.

The auction proceeds would be allocated between the child’s creditor and the parents. The parents could lose their home.

Proceeds from the Sale of Florida Homestead

Proceeds from the sale of your residence that qualifies as a Florida homestead are protected after the sale if you demonstrate an intent to reinvest the proceeds in a replacement homestead. There are several requirements:

First, you must show that you are actively looking for a new home. Evidence of an active home search includes a record of online searches, property inspections, and using a buyer’s real estate broker.

Next, you should not co-mingle the homestead proceeds with funds from other sources. However, you may spend money from this account on any item or reason during your home search.

What Is a Homestead Bank Account?

A homestead bank account refers to segregating sale proceeds into a new and separate bank account. These accounts are often referred to as “homestead accounts.” The term homestead account is a convenient description of a segregated account, but there are no official bank account designations with that name.

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How Much Time Do I Have to Reinvest Homestead Sale Proceeds in a New Florida Homestead?

There is no time limit on investing homestead proceeds in a new Florida homestead. The Florida Supreme Court has only said that “whether funds received from the sale of a homestead are invested in another homestead within a reasonable time must be determined from the facts and circumstances of each case.”

 Courts have found a timeframe of four months to be reasonable, and even one or two years to be reasonable in particular cases. However, courts have also found four years and ten years to be too long. You should be careful before transferring proceeds from a homestead into other exempt property. Some courts found that the homeowner’s transfer of proceeds from the sale of their exempt homestead into other exempt assets was a fraudulent conveyance. It is possible to preserve asset protection of homestead sale proceeds with proper planning.

Purchasing a Florida Homestead to Protect Your Money

Florida law allows you to protect unexempt assets at any time by purchasing a Florida homestead. A key feature of Florida homestead law is the homestead’s exemption from fraudulent conversion claims brought under Florida’s fraudulent conversion statute. Even after a lawsuit has been filed, you can invest unlimited amounts of money in large estate homes and farms and protect the full value of these luxury residences under Florida’s homestead law.

According to a key Florida Supreme Court ruling, you can convert unprotected, non-exempt assets to your homestead at any time by either buying a new home, improving the home, or reducing the principal balance of an existing mortgage. You can always protect their money under the homestead umbrella, even if the asset transfer was designed to protect the money from existing creditors.

Does It Matter If I Purchased a Florida Homestead With Money Obtained by Fraud?

Yes. There is an exception to the fraudulent conversion protection when the money invested in a homestead was obtained by deceit, fraud, or other egregious means. Your judgment creditor may impose and foreclose an equitable lien on a Florida homestead if the creditor can prove that you obtained money fraudulently or in breach of fiduciary duty and then invested the same funds in a homestead property.

Is a Florida Homestead Protected From a Money Judgment for Fraudulent Conduct?

Your homestead is exempt from the collection of a money judgment founded on fraud or deceit. The equitable lien exception applies only where fraudulently obtained money was invested in a homestead property. The creditor must trace the funds from the fraud into the homestead to prevail. This is different from a judgment that includes a count for fraud and deceit based on contract or tort laws.

What Is the Florida Homestead Act?

The Florida Homestead Act refers to Florida’s constitutional response to the expiration of the federal Homestead Act of 1862, which granted any U.S. citizen 160 acres of land if they agreed to live on and improve it. The purpose of the federal Homestead Act was to encourage U.S. citizens to populate Florida and other underdeveloped parts of the country.

Although the Homestead Act was passed in 1862, its benefits did not apply to people settling in Florida until 1873. But from that time until the Homestead Act was repealed, U.S. citizens could acquire land in Florida from the government in exchange for living on and improving it.

The current Florida Constitution, ratified in 1968, used this same number of 160 acres as a basis for the Florida constitutional homestead protection against forced sale and levy. In other words, the Florida Constitution ensured that those federal grants of up to 160 acres were protected.

Avoiding Probate of a Florida Homestead

The simplest way to avoid probate of homestead property is a lady bird deed, or enhanced life estate deed. A lady bird deed allows the property owner to retain a life estate with full control, use, and enjoyment of the property. Upon the owner’s death, the title to the homestead will go to the holder of the remainder interest (often, the children). No probate or court proceeding is needed.

Under section 196.031 of the Florida Statutes, the remainder interest qualifies for homestead creditor protection and the homestead tax exemption.

Florida residents can also avoid probate of a homestead by putting their homestead into a living trust. Living trust assets pass to the trust beneficiaries upon the death of the Trustmaker(s) without probate.

Advanced Florida Homestead Law Concepts

Does My Non-Owner Spouse Have a Legal Interest in My Florida Homestead?

A non-owner spouse does have a legal interest in their homestead property. A couple can arrange to have only one of two spouses own the couple’s homestead property. A married person can maintain a legal homestead in Florida even if one spouse is not on the home’s legal title. The property remains protected from creditors, and the house can qualify for the homestead tax exemption.

A non-owner spouse has their a separate homestead interest in the property even though that spouse’s name is not on the title. An owner-spouse cannot sell, transfer, or mortgage the family homestead without the signature and agreement of a non-owner spouse.

When only one spouse is on the homestead title and the owner spouse dies, the non-owner spouse residing in the home will have, at minimum, a life estate interest in the homestead. In other words, the non-owner spouse will have the right to reside in the homestead during their lifetime, even if their name was never on the property’s legal title.

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Can You Waive Your Marital Interest in Your Homestead?

A married person can waive their spousal homestead rights and interests. Homestead right waivers are frequently included in pre-nuptial agreements.

Can You Protect a New Homestead Under Construction or Under Contract To Buy?

Your property is not exempt under Florida Homestead law just because you intend to occupy the property sometime in the future. Property reserved for a future residence cannot be homestead property until it is occupied. Future homes under construction are not exempt homestead properties. The homestead law requires that you must reside in your home as your primary residence to have homestead protection.

If a civil judgment is recorded in the county where you own a house that you intend to occupy, or where you own a lot upon which you are building a future home, the recorded judgment will attach to your property. Subsequent occupancy of your home as a homestead will not erase the prerecorded judgment lien.

You should not purchase a homestead in any county where a creditor has previously recorded a judgment without careful planning, as the prior judgment may take precedence over your purchase and occupancy of a homestead in that county.

Florida Homestead Protection in Bankruptcy

Florida homestead protection may not apply if you file bankruptcy. Under bankruptcy law, homestead protection is capped by federal exemption limits unless the bankruptcy debtor occupied their current Florida homestead property, plus any previous Florida homestead properties, for a continuous 40-month period prior to the bankruptcy filing.

These exemption limits increase occasionally, so you should get the current limits from your bankruptcy attorney. Also, a bankruptcy trustee may challenge as a fraudulent conversion your transfers of cash into your homestead within ten years of filing bankruptcy if the transfer was intended to defraud creditors.

This bankruptcy law does not affect Florida’s unlimited homestead exemption in state court proceedings, including state court allegations of fraudulent conversion into a homestead.

Declaration of Domicile

Filing a declaration of domicile is not required to qualify for homestead asset protection. Facts showing intent to occupy a homestead permanently, such as your Florida driver’s license and vehicle registration addresses, are more important than a declaration you sign or file with the court.

Owning a Home in Another State

You can own a residence in another state and still claim the Florida homestead exemption. Many Floridians own vacation homes outside of Florida or maintain homes in a state where they spend half the year. A person may have several residences, but they can only have one primary residence. Your Florida homestead must be your primary home. A person who lives primarily in another state or country cannot form the required intent to qualify for Florida homestead protection.

Can a Living Trust Qualify for Florida Homestead Exemption?

You can still qualify for the Florida homestead exemption when a living trust owns your home. In addition to the standard evidence of residency, you may need to provide either a certificate of trust or certain trust pages. In some countries, you may have to provide the entire trust agreement.

The living trust agreement should explicitly give the Trustmaker an exclusive right to occupy and possess the homestead property for life. Proper language in a deed to trust can sometimes alleviate the need to provide the county with a copy of the trust documents.

Can a Married Couple Have Separate Homestead Properties?

A married couple cannot each own a different home and protect both homes under the Florida homestead exemption from creditors, with few exceptions. Separate homestead protection can be asserted only where the spouses are truly separated to the extent they have established different households.

An example is a couple living separately as they go through divorce proceedings.

Important Court Decisions

Havoco of America v. Hill, 790 Fla. 1018 (Fla. 2001): No Liability For Fraudulent Conversion into Florida Homestead

The Florida Supreme Court held that a debtor’s use of non-exempt money to purchase, improve, or pay off debt on a Florida homestead cannot be reversed as a fraudulent conversion unless the money applied to the homestead was obtained through actual fraud or other egregious actions.

The Court said that Florida’s constitutional homestead provisions take precedence over fraudulent transfer remedies enacted by the Florida legislature.

Cooke v. Uransky, 412 So 2d. 340 (Fla. 1982): Florida Homestead Protection Not Available Without Legal Residence Status

The Florida Supreme Court said that a debtor must have the legal right to permanent residency in Florida to claim protection under Florida homestead law. Foreign citizens visiting the state as a tourists or under a temporary visa cannot declare property in Florida as a permanent residence. Therefore, they cannot avail themselves of the homestead exemption benefits under the Florida Constitution. U.S. citizenship or a “green card” is required.

Hillsborough Inv. Co. v. Wilcox, 152 Fla. 889 (1943): Temporary Absence from Florida Homestead

A debtor may temporarily leave their homestead and reside elsewhere without losing homestead protection if the debtor intends to return to the same property as a permanent residence. This principle permits debtors who work or study outside Florida, as well as debtors incarcerated for criminal offenses, to retain homestead benefits.

Davis v. Davis, 864 So. 2d. 458 (1st DCA Fla. 2003): Debtor May Conduct Commercial Business on Homestead Property

A Florida resident’s commercial business operated on homestead property located in a county outside of a municipality did not disqualify the debtor from claiming protection of the homestead. It does not matter if a portion of the land is rented to a third party.

See also:

  • In re Oullette 2009 WL 1936896 (Bankr. M.D. Fla. 2009)
  • In re Radtke, 344 B.R. 690 (Bankr. S.D. Fla. 2006)

Englander v. Mills, 95 F. 3d 1028 (11th Cir 1996): Allocation of Homestead Exemption Between Exempt and Non-Exempt Part of Debtor’s Residence

Some people own a homestead greater in size than the ½ acre homestead lot size limit within cities. This federal appellate court held that the debtor could not allocate the acreage exemption by geography to the most valuable ½ acre upon which the physical house was situated. The entire property must be sold, and the net sales proceeds allocated pro-rata between the debtor and creditors based upon the ratio of the ½ acre size limit over the total lot size

FAQs About Florida Homestead Law

Below are answers to some frequently asked questions about the Florida homestead exemption.

How does the homestead law work in Florida?

Florida law completely exempts a home from judgment creditors and liens. The law requires that the home be owned and occupied as a primary residence by the judgment debtor.

How do you qualify for homestead exemption in Florida?

Any person can quality for the Florida homestead exemption. To qualify, the debtor must be a permanent Florida resident, and the homestead property must be the debtor’s primary place of residence.

A second home or investment property cannot be considered a Florida homestead.

Only debtors who are natural persons qualify for Florida homestead protection, so properties titled in the name of corporations, limited liability companies, irrevocable trusts, or partnerships do not qualify as homestead property.

What does a Florida homestead protect you from?

Florida homestead law protects your house from forced levy and sale by a civil judgment creditor. In other words, if you owe money on a judgment, the creditor cannot take away your home.

There are exceptions to what a homestead protects you from in Florida. The constitution states that homestead is not protected from the following debts:
-Liens on the homestead voluntarily given to secure a loan, such as a mortgage to purchase your home or a home equity loan.
-Mechanics liens for goods and services provided to build, repair, or improve your homestead.
-Liens recorded prior to homestead acquisition to secure payment of homeowner association dues and special assessments.
-Property taxes, state taxes, and IRS tax liens.

How do you claim the Florida homestead exemption?

You do not need to file a homestead claim for the homestead creditor exemption. The homestead asset protection exemption applies when you occupy your home with the intent for the home to be your permanent residence. However, people seeking the homestead tax exemption may have certain filing requirements to claim the tax exemption.

What happens to a Florida homestead after death?

Homestead protection continues after your death. A person’s homestead is not included in probate, and it cannot be liquidated to pay a decedent’s creditors. If the decedent’s heirs or trustees sell the homestead after death, the sale proceeds will pass to the decedent’s probate heirs and trust beneficiaries.

A creditor of the decedent has no additional remedies against the debtor’s homestead after the debtor’s death.

Are mobile homes protected under Florida Homestead Law?

The Florida Constitution’s homestead law does not apply to a mobile or modular home situated on a leased lot. However, Florida Statute 222.05 protects mobile homes from judgment creditors.

The statute provides that mobile homeowners and occupants whose home is on leased land may claim the mobile home as their homestead and exempt it from levy and forced sale.

Can people waive homestead protection?

Florida residents may voluntarily waive homestead protection when they pledge the homestead as security for a mortgage loan. Homestead protection may not be otherwise waived by contract. Waivers of homestead protection in loan documents, other than a mortgage, are unenforceable.

Who can put a lien on your house in Florida?

A creditor with a valid monetary judgment can get a lien on all property you own in the state of Florida. However, your homestead is exempt from forced sale and liens.

How long does it take to claim a Florida homestead?

You must live in the Florida homestead on January 1 to claim the homestead exemption. However, the house is protected from creditors the day you move in.

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.

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