The definition of “homestead” is distinct in the context of property taxation & creditor protection

The term “homestead” is used in two other contexts in the Florida
Constitution. First, it is used to define property that is protected from forced
sale by creditors under article X, section 4(a)-(b) of the Florida Constitution.
Second, it is used in the context of devise and descent in article X, section 4(c).
The definition of “homestead” in those two contexts is distinct from that term’s
definition in the context of property taxation. See Phillips v. Hirshon, 958 So. 2d
425, 427 n.3 (Fla. 3d DCA 2007) (“It is well appreciated in the case law
concerning homestead that the definition of homestead property for Article VII,
section 6 purposes is not the same as Article X, section 4 of the Florida
Constitution.”); see also Crain v. Putnam, 687 So. 2d 1325, 1326 (Fla. 4th DCA
1997) (“We recognize that the homestead provisions found in Article VII and
Article X of our constitution are separate and distinct, and principles relating to
one do not necessarily govern the other.”).


DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

KARAYIANNAKIS v. NIKOLITS
No. 4D09-8
[December 9, 2009]

http://www.floridahomesteadservices.com

johnbsims3,
what is the safest strategy for a Florida married couple with a minor child to NOT lose their unmortgaged Florida Homestead Asset Protection?
1. transferring their Florida homestead property to their living/revokable Trust (for the benefit of their minor child)?
2. executing a Florida Lady-Bird Deed and transfer their homestead property to themselves as tenants-by-entireties, with the remainder on-death to go to said Trust (which in turn is for the benefit of their minor child)?
3. other?
Thank you for helping us understand these concepts.
LtColumbo

LtColumbo
Good question that I can't answer. I would ask an asset protection attorney. There are many issues involved in your question which have no one answer.

http://www.floridahomesteadservices.com

Thank you very much, johnbsims3. This helps me understand the complexity of my question.
Two follow up questions:

1. Is the "minor child" what complicates the above question? If so, and leaving the minor aside, do you know if the certainty or the degree of the Asset Protection inherent in Florida's Homestead is the same if the home deed is in the name of a Living Trust with the married couple as co-grantors & co-trustees versus the deed being in the name of the married couple as Tenants By Entirety?

2. would you be willing to list the main issues you saw in my original question please, so that I can research them myself before contacting an asset protection FL attorney, so that I can I can be well prepared for a meaningful consultation?

Thank you! Your forum here is an excellent resource for those of us inclined or forced to the DIY approach (even if it is DIY only at first and later with counsel).

LtColumbo

Lt...Not really. The home placed in a living trust has the same protection as Tenant's by the Entireties in my opinion. Just make sure the trust language includes the fact that the Grantors have the right to live in the property and claim the homestead protection. However and asset in a TBE situation must have both debtors attached to the debt/asset. You are right on track sir!

Here is the language I use: Grantor specifically reserves the rights to reside upon any real property placed in this trust as their permanent residence during their lives. It is the intent of this provision to retain for the grantor the requisite beneficial interest and possessory right in and to such real property to comply with Florida Statutes 196.041(2), such interest being hereby declared to be "equitable title to real estate" as that term is employed in Section 6, Article VII of the State OF Florida Constitution. This is in order to claim a homestead tax exemption on any realty resided upon. Trustee shall have the full power to sell, encumber, convey, divide or mortgage the above-described property.

http://www.floridahomesteadservices.com