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How Florida’s Constitution Restricts Your Ability To Devise Your Primary Residence Via Will


In most cases, a person is free to dispose of their property as they choose when making a will. There is one notable exception, at least in Florida. A Florida resident’s homestead property–that is, their primary residence–is subject to certain constitutional and statutory restrictions when it comes to inheritance.

Basically, if you have a spouse or any minor children, you cannot disinherit them by delivering away your homestead property. The Florida Constitutional actually forbids this. More precisely, the Constitution states a homestead property “shall not be subject to device if the owner is survived by spouse or minor child.” Unless you have no children and leave your homestead outright to your spouse, any attempt to devise your homestead otherwise is invalid under Florida law.

Court Invalidates Mother’s Life Estate of Homestead Property Favoring One Son

In a situation where you leave a surviving spouse and one or more descendants (children, grandchildren, etc.), your surviving spouse can elect to take a “life estate” in your homestead after you die. This basically means your spouse can continue to live on the property until they die or choose to leave. At that point, the property goes to “the descendants in being at the time of the [your] death,” according to the per stirpes rules of distribution.

The Florida Second District Court of Appeals recently addressed a case, Ballard v. Pritchard, where these rules came into play. In the Ballard case, the decedent died in 2002. She owned a homestead residence in Florida. At the time of her death, the decedent was married and had two adult sons from a prior marriage. The decedent’s will created a life estate for the husband while leaving the “remainder” to just one of her two sons.

The spouse passed away in 2019. The son then filed a petition to administer his mother’s estate, as the house was the only asset. As noted above, the will provided he was the remainderman with respect to the house. The son’s brother who had passed away by this time himself. The deceased brother’s heir then filed a petition to determine the status of the decedent’s property. The brother’s heir argued that the life estate was invalid under the Florida Constitution and that both brothers inherited an equal share of the homestead.

The Second District agreed. Reversing a lower court’s ruling, the appellate court held that both brothers acquired a remainder interest in the property at the moment of their mother’s death. The mother was not allowed to only devise that remainder interest to just one descendant under the constitutional homestead restrictions. Indeed, the devise was invalid, and the Second District ordered a distribution consistent with Florida law.

Speak with a Florida Estate and Trust Litigation Lawyer Today

Many Florida residents may not even be aware of the homestead restrictions on their property. But ignorance of the law is no excuse. And an omitted heir has the right to pursue a legal claim against an estate that fails to follow the law. If you are involved in such a dispute and need advice from an experienced Pompano Beach estate and trust litigation attorney, contact the offices of Mark R. Manceri, P.A., today to schedule a consultation.



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