So, you’re driving the family around in Florida and look down to pick something up. You swerve, hitting someone and cause an accident. Your insurance isn’t enough to cover the liability, so you start wondering – are they going to be able to take our home? The answer is – it depends. In many States, the creditor can force the sale of an asset in Court to satisfy a debt. However, in the world of asset protection, you would be hard pressed to find a better form of asset protection than the Florida homestead exemption.
Unique to Florida, Article X, Section 4 of The Florida Constitution states that homestead property in Florida is “exempt from forced sale under process of any court.” This means that judgment creditors cannot levy and execute on property that falls within the definition of a Florida homestead. The homestead exemption is the highest form of asset protection because it is embodied in Florida’s Constitution and statutes, and it has been rigorously and consistently upheld by the courts.
What is Protected under Florida’s Homestead Exemption?
Florida Homestead law protects qualifying property within the State of Florida from forced sale under process of the Court. In order to qualify, the property at issue must be:
- Your personal residence (up to ½ acre within a municipality) including all improvements; or
- Your personal residence (up to 160 contiguous acres in any County) including all improvement.
Further, in order to qualify for this extraordinary asset protection, you must:
- Be a resident of Florida; and
- Use the property as your primary residence; and
- Have the property deeded to a “natural person” (and in limited circumstances certain trusts)
Interestingly, Florida Law also can protect the proceeds from the sale of Florida Homestead property to the extent that they are intended to be used for the purchase of a new Florida Homestead within a reasonable time frame from the date of receipt of the funds. However, care should be taken to not commingle funds from the sale of the homestead property – and it is advisable to hold such funds in a separate account (ideally named homestead funds).
Florida Homestead law protects qualifying property within the State of Florida from forced sale under process of the Court.
When is my property protected under the Florida Homestead Law?
The Florida Homestead protection attaches immediately upon occupancy of the property intended as a Florida homestead. In determining whether property qualifies, the intent of the owner/occupier is by far the most important criteria. While there is no formal requirement or form to be filed to gain this protection, you can file a “declaration of domicile” in the local court for your county. While intent is far more important than formalities, such a filing can help establish your intent should it become an issue.
How much of the value of property is protected under the Florida Homestead Exemption?
Surprisingly, the Florida Homestead exemption is unlimited. This means that whether your homestead is worth $50,000 or $2 million dollars, it is protected from creditors if it meets the criteria outlined above. As a result, the entire value of large estates and farms can be adequately protected under this law from claims of creditors.
Whether your homestead is worth $50,000, $2 million or more, it is protected from creditors if it meets the criteria.
Exceptions to Florida Homestead Exemptions
While the Florida Homestead Exemption certainly protects better than the vast majority of State laws, it is not without limitations. This law does not protect your property from tax liens, liens that pre-date your ownership (i.e. Condominium association fees), mortgages, or mechanic’s liens (i.e. the cost of labor and materials used by a contractor to remodel or improve your homestead.)
In addition, the law does not protect your property from a pre-existing civil judgment that is recorded in the same county as the homestead before you occupied the property. For example, if a civil judgment is recorded against you in Broward County and, after the judgment is recorded, you buy and occupy a residence in Broward County, you will not be protected.
There are also potential issues with joint ownership of property in the context of the homestead exemption if one of the joint owners does not reside in the property. For example, if your brother owns half a house that you live in alone, your brother’s one half interest is not protected by homestead protection and a judgment creditor may be able to force the sale of the house to recoup against your brother for his one half unprotected interest.
Florida Homestead Exemption and Bankruptcy
The United States constitution is known as the supreme law of the land. In practice, this means that in situations of conflict between Federal and State law, Federal law will apply. Bankruptcy law is a federal law that is often in conflict with Florida’s homestead exemption. Thus, the Federal bankruptcy law passed in 2005 explicitly limiting the Florida Homestead exemption in a couple important ways.
In a typical bankruptcy, homestead protection is limited to about $145,000 for single individuals and about $290,000 for joint bankruptcy debtors. However, these low limits don’t apply if a debtor has claimed a Florida homestead for at least 40 consecutive months prior to filing for bankruptcy. This modification of the law is simply aimed at preventing people from moving to states like Florida to take advantage of unlimited homestead exemptions immediately prior to filing for bankruptcy in an attempt to “game” the system. The bankruptcy law also has a 10-year “look back” provision allowing the bankruptcy court to “undo” any suspect contributions made to a homestead within ten years of filing for bankruptcy.
Not to be confused with the Florida Homestead Tax Exemption
Remember that there are two homestead exemptions in Florida, asset protection and tax benefits. In order to qualify for a tax exemption, certain formal paperwork must be filed with the tax appraiser in the county, and you must occupy the property on the 1st of January in the year in which you seek the benefit. However, even without seeking the tax benefits, the asset protection elements of the law apply regardless so long as you meet the criteria above.
All situations are not created equal
The Florida homestead exemption can be a exceptional asset protection vehicle when utilized properly. However, given the complexities of the law – as well as the way it interplays with federal and state laws – it is wise to consult with an Attorney familiar with the homestead law in Florida before choosing a course of action.
At Sawan PLLC, we can help with a variety of legal matters, including tax planning, asset protection, real estate and more. Call us today to speak with an Attorney.