Home' Island Sun : ISN 021216 Contents ISLAND SUN - FEBRUARY 12, 2016
Most of us are familiar with the Florida homestead ex-
emption that saves a few hundred dollars on property
taxes. If you were a resident of Florida this past Janu-
ary 1, and have not yet applied for your Florida homestead
exemption, now is the time to do that since the deadline is fast
approaching on March 1.
In addition to the annual savings, claiming Florida homestead
entitles you to a cap on the annual increase to your home’s
assessed value. Even if the value of your residence exceeds a 3
percent increase, the appraiser’s office can only increase the
value by 3 percent. Over the years, the “Save Our Homes Property Tax Assessment
Cap” can save thousands of dollars.
Today, however, I wish to discuss a lesser-known consequence of Florida home-
stead. This has to do with the descent and devise rules found under Florida’s Constitu-
tion and our statutes.
Simply stated, if your spouse and/or minor children survive you, you cannot devise
your home (through your will or trust) to anyone other than your spouse. If you devise
the homestead to any other person or entity then that devise is invalid.
Assume, for example, that you and your spouse purchased your Florida home
before you became a Florida resident. In order to balance out your estate for federal
estate tax purposes (necessary under the old estate tax laws but different since por-
tability implemented in 2012) your attorney up north may have advised to place the
Florida homestead in one spouse’s trust and the norther n residence into the other
The trusts probably contain credit shelter and/or marital trust provisions for the sur-
viving spouse. Even if the trust of the deceased spouse continues on for the surviving
spouse, and if that trust owns the Florida homestead, it is an invalid devise. The devise
may have been perfectly fine the day before you became a Florida resident, but once
you claimed Florida residency, this problem arose.
When an invalid devise exists, then Florida law does not care what your will or trust
says about who is to inherit your homestead. Instead, your spouse may choose be-
tween a life estate interest in the home or an undivided half interest as tenants in com-
mon. The rest of the interest of the home is owned by the decedent spouse’s children.
What this means is that the surviving spouse cannot sell the home without the
consent of the children, and the children must agree as to the sales price and will share
in the sales proceeds. If any one of the children do not consent to a sale or transfer,
then it cannot occur. Further, if one of the children has an economic, tax, creditor or
divorce issue, then the title of the home may become clouded.
Obviously, an invalid devise should be avoided. An update of the estate plan to
Florida documents and Florida law is the first step. Sometimes more advanced plan-
ning is necessary. Take, for example, the circumstance where husband and wife are
in a second marriage, each with children from a prior marriage. Wife owns the home,
but if she predeceases husband she wants him to remain in the home rent free for the
rest of his life, but also wants the equity of the home to one day benefit her children
and not his.
Wife may even want husband to have the opportunity to sell the home and reinvest
the proceeds into a new home of his choosing, so long as the equity of the original
home ends up with her children.
In order to satisfy wife’s intent, it will be necessary for husband and wife to enter
into a valid nuptial agreement waiving the Florida Constitutional and statutory home-
stead descent and devise rights. Under Florida law, such a nuptial agreement will re-
quire each party to have separate legal counsel, as well as full disclosure of their assets,
even though the parties presumably don’t wish to waive rights to each other’s assets.
Once the husband and wife satisfy the nuptial agreement/waiver requirement, then
wife can direct her attorney to draft an appropriate residential property trust within her
will or trust documents.
This is but one example of how the Florida descent and devise laws affect the
disposition of one’s homestead. If you own Florida homestead and haven’t updated
your legal documents, it may be time to visit with a qualified estate planning attorney
to discuss these important issues.
©2016 Craig R. Hersch. Learn more at www.sbshlaw.com.
Descent And Devise
by Craig R. Hersch, Florida Bar Board Certified
Wills, Trusts & Estates Attorney; CPA
This property is located one lot from the Gulf of Mexico,
with a potential gulf view from first or second floor of a piling
home, deeded beach access from the rear of the property.
Short walk to the community pool and tennis(one block),
quiet neighborhood of single family residents. Near world
class Blue Ribbon elementary school and shopping. It is
believed that a home of 3800 sq. ft. will meet the building
requirements for Sanibel, actual size might vary.
Tom Roderick, GRI, Broker Associate
Keller Williams Fort Myers and The Islands
Cell: 239-848-0402 • Email: firstname.lastname@example.org • Web: http://www.troderick.com
Gulf Pines Subdivision
Gulf Pines Subdivision
Meets With School Board Chair
Steve Teuber, chair of the Lee County School Board, met with the Sanibel-Captiva
Republican Caucus on January 30, to discuss plans to restore Lee County
schools to the high performance levels they had in the recent past. Lee County
schools are run together as an integrated whole, with about 91,300 students in 120
schools and a budget of over $1.3 billion. Court rulings mandate that every student
have equal access to all features of education in the county, which raises the potential
issue of transporting students over large distances to access unique educational op-
Teuber stressed the board’s goal of maintaining educational excellence while
containing costs. A new superintendent of schools has been appointed and is off to
a great start. The board is establishing centers of excellence for various specialized
subjects, distributed throughout the county to reduce busing costs. It is contracting
auxiliary jobs, such as cooking and janitorial services, to specialized agencies for ef-
ficient, quality services. And, Teuber stressed the involvement of parents in their child’s
education to be especially important.
The Sanibel-Captiva Republican Caucus is holding bi-weekly meetings at the Sani-
bel Library on Saturdays at 10 a.m . to inform its members and the public of issues of
importance to the citizens of Sanibel. The next several meetings will include repre-
sentatives from presidential campaigns. For more infor mation, contact Will Smith at
397-0819 or email@example.com.
Steve Teuber speaks to members of the Sanibel-Captiva Republican Caucus
From page 5B
be provided and are included in the class
price. Students are advised to bring their
For additional infor mation or to sign
up for a beading class, call The Commu-
nity House at 472-2155 or visit sanibel-
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