Homestead Law: A Legal Chameleon

Homestead Law: A Legal Chameleon

Posted By Owenby Law, P.A. || 4-Mar-2016

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.

Categories: Probate
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