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Probate Case Law and Florida Homestead Protection

Updated: Jan 10, 2021

In many cases when someone passes away, the home they live in is exempted from probate and protected from creditors. Because of those protections the Court cannot force the sale of the home to satisfy creditors of the Estate.

Homestead is defined as your primary residence and limited to either a one-half acre within a municipality or 160 acres in any Florida county (Florida Constitution Article X Section 4).

Florida courts have gradually expanded the protections through liberally expanded definitions. In a recent decision the Appeals Court in the Second District Court of Appeals Court did just that.

The question before the Court was, "does renting a room in a homestead property destroy the unique protections of a Florida homestead property?". In Anderson v. Letosky, the Dependent's son petitioned the probate court, seeking a judicial determination that the Dependent's entire home was protected homestead, and therefore exempt from creator claims. In response, the creditor argued that 75% of the value of the home should not be protected - because I was rented to tenants - and therefore it could be used to pay creditor claims.

In deciding the case, relied on a 1992 case (First Leasing & Funding of Florida, Inc. v. Fielder) that used a two-part test to determine if the property was homestead: 1) is the residence a mere fraction of the property and 2) can the property be separated. In the Anderson case the residence, including common areas were not separated even by using an imaginary line. This differs from a duplex or other arrangement where a vertical or horizontal imaginary line could divide the property.

Therefore the Court ruled in Anderson that the property was homestead and therefore exempt from creditor claims.

The specific facts of your situation greatly affect whether or not the protection applies . If you have questions about how homestead exception from creditors applies in your particular situation, please call us at Kendrick Law Group for a complimentary consultation.

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