David,
Thanks for posting! You are correct, the courts do try hard to favor the homesteader. Regarding your second paragraph, this is what I have published in my book:
Discussion Regarding Devise of Homestead Property
An area where the homestead becomes meaningful involves the ability of the person to sell or mortgage his home during his lifetime or devise or dispose of his home after his death. The Florida Constitution provides that the homestead is not subject to devise (not able to be disposed of) if a spouse or a minor child survives the owner, except the homestead may be devised to the owner's spouse if there is no minor child.
The law provides that if a spouse and lineal descendants survive a decedent, the surviving spouse takes a life estate in the homestead, with a vested remainder to the lineal descendants. Whenever a Will is drafted for a person domiciled in Florida, care must be taken in drafting the Will with a provision that devises homestead property.
Normally, real property owned as 'tenants by the entirety' is not considered homestead property for purposes of placing restrictions on the devise of a retiree's home.
Most married persons who have homes in Florida will probably hold title as Tenants by the Entirety. It is suggested that thorough research on this issue be performed as Tenancy by the Entireties laws and court rulings have changed drastically in the last few years, especially in tax and property matters. Where the title to real property is held in the name of one spouse only, and they are domiciled in Florida, the estate plan must be fashioned to be consistent with the Florida homestead laws. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. Since the owner of homestead real property who has no spouse but does have a minor child can sell or gift the property, one might conclude that the owner as part of his estate planning would have the right to transfer the homestead real property to a revocable trust. This is not true.
For example, Joe died testate in 1988 in Broward County survived by a minor child who was then residing with the decedent's second wife in Dade County. In 1986, Joe executed a revocable trust designating himself as trustee and as lifetime beneficiary of the trust. Upon his death, his home was to be gifted to his adult child by an earlier marriage. The decedent transferred his home to the trust. The court would have to rule that by retention of the complete control of the property with an absolute right to revoke the trust, it was apparent that the testator intended to circumvent the constitutional restriction on testamentary disposition of the homestead while at the same time treating the property as his own during his lifetime. In concurring opinions, one judge has already raised the question of whether a transfer to an irrevocable trust might be valid. Of course the transfer to an irrevocable trust would be valid. An irrevocable trust is one of the most powerful tools available to insulate one's property from misfortune by any means, but the requirements to obtain the exemptions for trust property are strict.
The Florida homestead and exemption laws can be very confusing even for a knowledgeable attorney. The following examples may clarify their application: If a person has no minor child, he can devise his homestead to his spouse. If a person has a minor child, he cannot devise his homestead to his spouse. If a person has a spouse but no minor children and devises the homestead to a third party, the devise is ineffective even if it is a devise to his adult child. If a person has a spouse but no minor children and devises the homestead jointly to his wife and one of several adult children, the devise is ineffective if the person makes no provision in his Will for his homestead, or if the devise is ineffective, then the surviving spouse receives a life estate and the remainder will be vested in the testator's lineal descendants who are living at his death. If a person has no spouse but has adult children, he can devise the homestead any way he pleases. If a person has a spouse and children, some of whom may be minors, and wants to sell or mortgage the homestead during his lifetime, he can do so if the spouse consents. A person can sell or mortgage the homestead, if he has no spouse but has minor children.
Even though a Florida resident may have no right to devise homestead property at the time a Will is executed, the property owner should provide in his Will for the homestead property's disposition since it may not have that status upon his death. Also, moving into a new home and renting the former homestead may abandon the homestead status of the property. You must properly claim the new home as your homestead to protect your home and equity. The homestead protection may terminate if the retiree's spouse dies or a divorce occurs. The property owner should seek a knowledgeable attorney and inquire whether there is some solution to the aforesaid potential homestead problem. It has been suggested that a plausible solution would be to transfer the homestead property to an irrevocable trust in which the person simply retains a life interest in the trust. At the person's death, the trust asset would pass pursuant to the trust instrument and not according to the homestead laws.
Unfortunately, the person may have to act at his or her own peril since there are not many recent cases directly on point but competent legal counsel is highly recommended. However, based upon analogous cases, it would appear that a trust would allow the person to continue to live in the residence and still avoid potential homestead problems. If a person entered into a prenuptial agreement with his or her spouse pursuant to which he or she waives any interest in the homestead, the waiver should be effective. If a person who has married for a second time holds title to homestead property and desires to pass title to his or her children upon his or her death, the person should enter into a marital agreement wherein the new spouse waives all rights to the homestead, otherwise, the second spouse will possibly be able to take a life estate in the homestead and the children will receive a vested remainder.
Another example is if a resident of Florida desires for the homestead to pass to his stepchildren who are the deceased spouse's children, the owner must enter into a marital agreement wherein the new spouse waives all rights to the homestead. Although it is likely that a spouse can legally waive homestead rights after the marriage, there is no court case directly on point to my knowledge and it is possible that a court might hold that the children have vested homestead rights once the second marriage occurs and that the second spouse cannot waive those rights.
Formerly, although the Florida Statute authorized the conveyance of homestead property through a power of attorney, such transactions were not practically effective. Uniform Title Standard 18.4, published by the Florida Bar, previously indicated that the conveyance of a homestead to a power of attorney constituted a cloud on the title. In 1992, the title standard was amended to authorize such a conveyance if specifically authorized in the power of attorney. The power of attorney should specifically include the power to convey or mortgage the property and preferably should include an address and a legal description of the property. The power of attorney must be executed with the formalities of a deed and be recorded, along with an affidavit, by the attorney-in-fact. Although a joinder of a spouse is still required, the joinder can be accomplished through a power of attorney. In 1992 the Florida Legislature substantially modified the homestead law to make it clear that title to real property held in a revocable living trust remains homestead if it would have been homestead, and if it had remained titled in the settler's name alone.
In addition to what has already been covered, an attempt by a deceased owner to devise his homestead property by Will is void if either a surviving spouse or a minor child survives him. An exception is that a devise of the fee simple title to the surviving spouse would be valid if there are no minor children. If not validly devised, the homestead passes outside of the powers of the personal representative in the probate proceeding directly to the surviving spouse if any, for life, with a vested remainder to the decedent's lineal descendants. If there is no surviving spouse and the homestead is not validly devised, the title passes by normal Florida intestacy to the heirs at law but outside of the powers of the personal representative to sell. If there is no lineal descendant surviving, the surviving spouse takes ownership in fee simple under the intestacy rules of Florida.
If the homestead is validly devised to someone who is not a relative within the class of potential heirs at law, one that could potentially have inherited the devised interest by intestacy if the intervening potential heirs had predeceased, then the property loses its homestead status before it reaches the hands of that beneficiary and is an asset in the probate estate subject to sale to pay the costs of administration and creditors' claims. If the interest was validly devised to a relative who was potentially an heir at law of the decedent, then the homestead passes directly to that devisee without being subject to the power of the personal representative to sell it to pay claims or costs of administration. Of course, the probate estate is the proceeding in which the homestead or non-homestead status of the interest is determined. An order determining the homestead status in the probate estate, entered at a hearing after notice to all creditors and other interested persons, may be necessary in order for the heirs or devisees to have the ability to convey a marketable title to others.
Any attempt by a living homestead owner who is married to deed or to mortgage the homestead without the joinder of his spouse is void. A money judgment against either spouse or against the owner of a homestead cannot be a lien on the claimed homestead. To have marketable title to the property free of a properly recorded judgment, however, an owner must establish the property's homestead status judicially and notice the creditor upon sale or refinance.
I have posted cases on abandonment and rental in the "Case Law" forum.
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