Homestead protection is available to any real property owned by an individual that is their place of abode (and if temporarily absent, where they intend to return). Inside the city limits, an individual may homestead up to a half acre of contiguous property. Outside city limits, up to 160 acres of contiguous property may be homesteaded. That's pretty much it: the property has to be within the size limitations stated above, and it has to be where you live. Without doing anything else, it is your homestead. There's no form to fill out or registration to make, it just is. In order to get the full benefit of the homestead laws, you do have to take some action (which I will address later on in this post).
So, to the background. Florida homestead law is thought to derive from the influence of Spanish colonial laws and the Civil War. Context is everything right? A little state history: Spain ceded ownership of Florida to the USA in 1819. Florida became a state in 1845. Florida, to our great shame, was a slave holding state. In 1861, Florida seceded from the Union. During the Civil War, Florida was a supplier of salt, cattle, and men to the Confederacy. There were battles fought in Florida. Men went to war, and some of them never returned. At the time, there was no homestead law. The displacement of widows and children by creditors or family members must have been massive. Survival in the 1860's without the support of a husband was a major obstacle for any woman, whether or not she was also a mother.
Florida was readmitted to the Union in 1868 with a new constitution, usually referred to as the "Reconstruction Charter." It was in this version of the Florida Constitution that the first homestead provisions appeared at Article IX. The law protected the homestead from "forced sale" both during a man's life and even after his death. The law also prohibited the "alienation" of the homestead by deed or mortgage without the wife's consent. This consent provision was crucial. Lastly, the law provided that the homestead descended to the wife and/or minor children and prevented the husband from deviating from this distribution by alternate devise in his Will. In case it is bothering you, the gender specific terms used in this post are intentional.
Florida was readmitted to the Union in 1868 with a new constitution, usually referred to as the "Reconstruction Charter." It was in this version of the Florida Constitution that the first homestead provisions appeared at Article IX. The law protected the homestead from "forced sale" both during a man's life and even after his death. The law also prohibited the "alienation" of the homestead by deed or mortgage without the wife's consent. This consent provision was crucial. Lastly, the law provided that the homestead descended to the wife and/or minor children and prevented the husband from deviating from this distribution by alternate devise in his Will. In case it is bothering you, the gender specific terms used in this post are intentional.
Why was the consent provision so crucial and why was it so hard for a widow? At the time the Reconstruction Charter was adopted, Florida did not have a Married Women's Property Act. As hard as it is to fathom today, 150 years ago all of a woman's belongings (as well as the woman herself) became the property of her husband upon marriage. A married woman could not own property: chattel can't own chattel. If not for the social stigma then attached to single parenting or "spinsterhood" I have to think many women would have given a hearty "NO THANKS" to any marriage proposals. Florida was the last of four states to enact a Married Women's Property Act in 1943, almost 100 years after the first one was enacted. Shameful, but not shocking. Florida as a state has not been exactly "forward thinking" on women's rights. Consider that Florida was dead last in ratification of the 19th Amendment to the US Constitution (women's right to vote), a full FIFTY YEARS after the amendment was passed into law. Way to go, Florida legislature. I procrastinate, but dang, that takes the cake and the candles.
So, the homestead law was therefore very important to a widow and her children, protecting them from creditors of the husband as well as the husband during the husband's life. The law also protected the widow and children from the husband's Will, or his family, or his creditors after his death.
The law remained pretty much unchanged until the Great Depression. Many Floridians lost their homes within the first few years of the Great Depression because they could not pay their ad valorem (real estate) taxes. So, the constitution was amended to add an ad valorem tax exemption for homesteads. Originally, the exempt amount was $5,000 of the fair market value. In order to get the benefit of the ad valorem tax exemption, you have to declare your homestead. Your local Property Appraiser's office can clue you in on the specifics. Here's a link to the contact info for all property appraisers in Florida by county. Here's a link to the State's information page on homestead. Here's a link to the current Homestead constitutional provision (Article X, Section 4).
One misconception about homestead law is that it makes your homestead inviolate. Not so. If you apply for Medicaid assistance, only the first $500,000 in equity is exempt. If you instruct the Personal Representative of your estate to sell your homestead in your will, then it loses homestead protection. The IRS can always wade in and take it on a federal lien (Federal law trumps state law), a materialman can foreclose a Claim of Lien under the Construction Lien Law, a mortgage holder (if they've gotten the appropriate spousal consent) can foreclose their mortgage, and you can lose your homestead through a tax deed if you don't pay your ad valorem taxes. There's also a chance of losing your homestead status in Bankruptcy if the court perceives that you haven't played by the rules.
In addition, just because property is your homestead, that doesn't mean that judgments or liens against you won't be sitting there to ruin your day. If judgments are recorded against you and you try to refinance or sell your homestead, a title company will not insure the title unless the judgments or liens are satisfied, released, or you go through a process to formally declare the property your homestead. To do this, you have to file a declaration with the clerk of court who then mails notice to all lienholders. A waiting period occurs and if there are no responses, you are done. If a lienholder objects, they have to file a declaratory judgment action to determine the issue. Objections are rare: your property either is your homestead or it isn't. Here's a link to the statute for removing liens before levy, which contains the basic form of the pleadings. If a judgment holder is trying to levy against your homestead, the process for removing liens after levy is different.
So, there it is. Enjoy, especially the ladies. We have a way to go, for sure; but I am never so happy to be living in this day and age than when I look at these old laws.
Julie
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