What happens when a decedent’s homestead is larger than Florida’s
constitutional size restrictions, but cannot be subdivided? When it comes
to probate administration, this is an important question. In estates with
friction between beneficiaries, creditor problems, elective share issues,
or significant liquidity problems, this issue will have to be addressed
squarely, but interestingly, the Florida courts have not clearly addressed
this issue themselves.
In an article entitled “The Chameleon is Too Big (And Cannot Be Subdivided)”,
accessible online via the Florida Bar Journal, Thornton B. Henry describes
the importance of determining what portion of a homestead is “protected”
and what parts are “nonprotected.” While there are some court
cases that may suggest an answer, their rigid application could actually
contradict Florida homestead law and may end up creating inequitable results.
Henry states that proportionate methodology, in which the recipient of
the protected homestead is allocated a proportionate amount of the proceeds,
is deeply flawed. The recipient would receive far less if a homestead
could not be subdivided than if it could. Furthermore, it directly violates
the principle of “residence anchors the analysis” brought
up in another important Florida case. And worse, the larger the size of
the protected homestead, the less its value.
The purpose of this article is to propose a consistent methodology to determine
the value of both the nonprotected and protected portions of a homestead
in a way that is fair, but as with all homestead issues, these answers
are not straightforward or simple.
Follow the link above to read the full text of this analysis.
Homestead law can be complex. If you are facing a homestead matter, it
is important that you team up with a Jacksonville probate attorney at
Owenby Law, P.A. You can feel confident with an experienced lawyer fighting
for your best interests.
Free initial consultations are available when you call (904) 770-3141.