Homestead Protection in Florida (Part 2 of 2) – Obtaining Homestead Protection In Florida

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Homestead Protection From Property Taxes

Homestead protection from property taxes is obtained by contacting the applicable county property appraiser and submitting the required application. Homestead applications must be received by March 1 of the year after the property becomes an individual's "permanent residence." What constitutes a permanent residence is ultimately a matter of facts and circumstances, although the Florida statutes define permanent residence as “that place where a person has his or her true, fixed, and permanent home and principal establishment to which, whenever absent, he or she has the intention of returning.” Once the application for homestead protection from taxes is processed and approved, the exemption will be reflected in the taxable value portion of the property tax bill. Florida law does not allow a person to have two homesteads, even if the other property is in another state. It is also generally not allowed for a married couple to have two homesteads absent a showing of special circumstances.

The Florida statutes determine the procedure for when an individual has been denied homestead. The Property Appraiser must notify the taxpayer by July 1st if they intend to deny the application for that tax year. The taxpayer then has 30 days to file a petition to the county Value Adjustment Board. If the Value Adjustment Board denies the petition, the taxpayer has 15 days to file an appeal to the circuit court. Alternatively, the taxpayer may bypass the value adjustment board and file an action directly in circuit court within 60 days of certification of the tax roll.

Homestead Protection From Forced Sale By Creditors

Any Florida resident who meets the conditions stated above may avail themselves of homestead protection from forced sale by creditors. The Florida statutes allow for the filing of a Declaration of Domicile with the county recorder, which serves as a formal declaration of an individual's residency. However, the existence or nonexistence of such a declaration is not the determinative factor for concluding whether one is a Florida resident entitled to claim homestead protection from forced sale. Rather, the statutes list numerous factors that may lend to a determination of residency, including:

Formal declaration of residency (Declaration of Domicile);
Designated address for children attending school;
Designated address for bank accounts and statements;
Place of employment;
Termination of previous residency in another state or country;
Proof of registration to vote in Florida;
Holding a Florida driver's license;
Registration of vehicles in the State of Florida and the presence of Florida license tags on all vehicles;
Filing federal income tax forms from a Florida address; and
Proof of payment of utilities on the property for which permanent residency is being claimed.

Here again, the determination is ultimately one of facts and circumstances, and no single factor is conclusive of the establishment of permanent residence. Thus, the only concrete rule is that the stronger one's ties to the State of Florida, the better one's assertion of residency will be received.
It should be noted that homestead protection from property taxes and homestead protection from forced sale by creditors are two distinct legal concepts that have little in common other than their labeling as "homestead." Thus, in multiple residence situations, the existence of homestead protection from property taxes on one residence will not be determinative of whether that property will be entitled to homestead protection from forced sale by creditors. The facts and circumstances will be the ultimate arbiter in every case.

Homestead Protection From Transfer Or Devise

Homestead protection from transfer or devise occurs automatically by operation of law. This element of Florida's homestead can serve as both a benefit and a detriment. On one hand, many spouses can appreciate the fact that the other spouse cannot transfer the homestead property without their consent or devise the homestead out from under themselves or their children. On the other hand, these restrictions can wreak havoc on estate plans if they have not been taken into consideration at the outset.
The restrictions on the devise of the homestead work hand-in-hand with the protection from forced sale by creditors. The result is that, in most instances, a decedent's estate cannot be forced to sell the homestead to satisfy the debts of the decedent.

Homestead And Estate Planning

Proper estate planning requires the assistance of an experienced professional with in-depth knowledge of the legal effects of homestead protection in Florida. As described above, satisfying the requirements for Florida homestead from taxes will not necessarily extend protection from forced sale by creditors and the restrictions on transfer cannot be avoided simply by making a bequest in a will or even by moving homestead property into a trust. A full description of every estate planning hazard or opportunity that arises as a result of Florida homestead is outside the scope of this article. Thus, it is advisable to consult with a Florida estate planning attorney before undertaking any estate plan.