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Can I Devise My Homestead Property by Will?

As with many legal questions, the answer is that it depends. Homestead property is the primary residence of a natural person, and the Florida Constitution affords it certain protections. Amongst these are certain restraints on devise, that is, how you can give your homestead away at death. If you are the sole owner of the homestead property and you are not survived by a spouse or any minor children, then you are free to devise your homestead property as you wish. If you are survived by your spouse and no minor children, then you can devise your homestead property to your spouse in fee simple, while any other attempted devise will fail. If, however, you are survived by a spouse and minor children, you cannot devise your homestead property by will.

If you make an improper devise, then your property will transcend pursuant to Florida’s intestacy rules. If, however, you are survived by a spouse and one or more descendants, the homestead property will be devised to them. Upon your passing, your spouse will take a life estate in the homestead property and the descendants alive at your passing receive a vested remainder, per stirpes. If your spouse would not like a life estate in the property, they can elect to take an undivided one half interest in the homestead property as tenants in common with the other descendants alive at your passing.

To summarize, when making the decision on how to dispose of your home upon death, it is important to consider how you own the home and who you own the home with. These considerations can greatly affect what control you have over your home when it comes time to devise it. An attorney can easily help you make these decisions and ensure your interests remain protected.

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