New for 2019: An E-Book by Chuck Rubin:

RUBIN ON FLORIDA HOMESTEAD

A COMPREHENSIVE TREATISE ON ALL ASPECTS OF FLORIDA HOMESTEAD LAW


Steve Leimberg says:
Florida’s homestead law is unique among U.S. and foreign jurisdictions and is replete with concepts that are highly difficult to fully grasp. Fortunately, between Chuck Rubin’s mastery of the topic and his crisp and clear understandable and practical style of writing, when you finish this book, you’ll have a strong working knowledge that will serve both you and your clients well. Providing proper and timely (before it’s needed) advice on the homestead exemption can make you a hero! (and ignorance of what’s in this book can make you a heel!)

Here’s a quick look at the Table of Contents: 

RUBIN ON FLORIDA HOMESTEAD
© 2019, All rights reserved

CHAPTER 1 - INTRODUCTION TO FLORIDA HOMESTEAD LAW 11
Sources of Law 11
Nature of Homestead Rights and Interests 11
Public Policy 12
Principal Areas of Florida Homestead Law 13


CHAPTER 2 - HOMESTEAD DEFINED 14
For Purposes of Exemption from Forced Sale, Restrictions on Devise and Transfer,
and Probate Code Administrative Provisions 14
(1) In General - Same Definition Applies 14
(2) Principal Requirements 15
(a) Requirement One - Natural Person Ownership 15
(b) Requirement Two - Interest in Florida Real Property 16
(c) Requirement Three - Permanent Residence/Intent to Permanently Reside
31
(d) Requirement Four - Size, Contiguity, and Improvements 43
(e) Requirement Five - Residential Character 49
(f) Funds from Disposition or Otherwise From the Property 27
(g) Notice & Filing Aspects 54
(h) Post-Death Issues 57
Special Definition Aspects For Ad Valorem Tax Exemption Purposes 58
(1) General Definition and Types of Possessory Interests 58
(a) Life Estates 58
(b) Long Term Leases 59
(c) Condominiums and Cooperative Units 60
(d) Joint Tenancy 60
(e) Trusts in General 60
(f) Contracts to Purchase 63
(g) Limited Estates 64
(h) Interests in Other Entitles 65
(2) Permanent Residency Requirement 65
(a) No Necessity for a Structure 69
(b) Commercial Use 70
(c) Abandonment - In General 71
(d) Rental as Abandonment 72
(e) Possession by Survivor of Deceased Owner 73
(f) Minors & Student Residences 74
(g) Boats, Pools, Mobile Homes, and other Similar Property 75
(h) Active Military 75
(3) Divisibility of Property 76
(4) No Size Limitation; Contiguous Property 76

CHAPTER 3 - RESTRICTIONS ON INTER VIVOS AND TESTAMENTARY TRANSFERS 78
Definition of "Homestead" 78
Limits on Inter Vivos Transfers and Alienation 78
(1) Article X, Section 4(c) of the Florida Constitution 78
(a) More on Spousal Joinder 79
(b) Transfers by One Spouse to Tenancy by Entireties 81
(c) Voiding of Improper Transfers 81
(2) Transfers by Incompetent and Absentee Owners 83
Limits on Testamentary Devise 83
(1) Constitutional and Statutory Prohibitions - In General 83
(2) Descent of Homestead - The Particulars 84
(a) Decedent has a Surviving Minor Child (With or Without a Surviving Spouse) 85
(b) Decedent has a Surviving Spouse and No Minor Child 87
(c) Decedent has no Surviving Spouse nor Surviving Minor Children. 89
(d) Other Aspects. 91
(3) Surviving Spouse Election to Take a One-Half Tenant in Common Interest . 93 (a) Reasons to Consider Making the Election 93
(4) Homestead owned as Tenants by Entireties, Joint Tenants with Rights of Survivorship, or via Life Estate 95
(5) Trust Ownership at Death 96
(a) In General 96
(b) Revocable Trust Ownership. 96
(c) Irrevocable Trust Ownership 97
(6) Using Lifetime Transfers to Defeat Testamentary Devise Limitations 99
(7) Waiver or Disclaimer of Homestead Rights, Including Marital Agreements. 99
(a) Waiver 99
(b) Disclaimer 104
(c) Laches 106
(d) Adverse Possession 106
(e) Acceptance of Alternate Devise 107
(8) Slayer Statute 108

CHAPTER 4 - PROBATE ADMINISTRATION AND OTHER DEATH OF OWNER ISSUES 109
A. Protected Homestead 109
(1) Definition of Protected Homestead 110
(a) Exclusions from Protected Homestead Status 113
(2) Effects of Exclusion from Probate Estate - In General 113
(3) Effect of Exclusion from Probate Estate - Protection Against Creditors of
Decedent 115
(a) Interests in Trust. 117
(b) Exception - Will or Trust Requires Sale 118
(4) Effect of Exclusion From Probate Estate - Limited Possession and Protection of Homestead Property by the Personal Representative 119
(a) The Personal Representative's Expenditures and Lien for Expenses 120
(b) Revocable Trust Ownership 124
B. Elective Share 125
C. Community Property 126
D. Estate Tax Apportionment 126
Claims of Creditors of Decedent 128
Disclaimed Homestead 128
Spousal Waivers 128
Misc. Probate Issues 129
(1) Personal Representative Fees 129
(2) Attorney Fees 129


CHAPTER 5 - PROTECTION AGAINST FORCED SALE 130
A. Scope of Protection 130
(1) In General 130
(2) Public Policy 131
(3) Liberal Construction 131
(4) Protection Against Liens 132
(a) Timing of Lien Issues 133
(5) Nonexclusive List of Barred Creditors and Claims 134
(6) Fraudulent Conveyances and Other Conversions of Property Into Homestead
Property 136
(7) Multiple Homesteads For Married Persons 137
B. Application of Creditor Protection to Joint Tenancies and Other Mixed Possessory
Interests 137
(1) Tenancy in Common and Tenancy with Right of Survivorship 137
(2) Tenancy by the Entireties 138
(3) Life Tenants/Term of Years & Remaindermen 140
C. Exceptions to Protection 141
(1) Nonbankruptcy Exceptions 141
(a) A Short Primer on Equitable Liens 141
(b) Group One: The Three Voluntary Exceptions and Mortgages 142
(c) Group Two: Equitable Subrogation Liens and Other Similar Liens 145
(d) Group Three: Equitable Liens Arising from Fraud or Egregious Conduct 147
(e) A Possible Fourth Group for Family Law Issues? 151
(2) Federal Bankruptcy Exceptions/Limitations 154
(a) Prefiling Domicile Requirement (§522(b)(3)(A)) 154
(b) 1,215 Days of Homestead Ownership Requirement - §522(p) 156
(c) 10 Year Ownership Requirement If Intent to Hinder, Delay or Defraud -
§522(o) 161
(d) Criminal Acts or Other Bad Conduct - §522(q)(1) 163
(e) Denial of Discharge 163
(f) The Footloose Exception to the Homestead Exemption - Incomplete Disclosure of Homestead 164
(g) Award Against Involuntary Bankruptcy Petitioner Upon Dismissal (11
U.S.C.A. 165
(3) Protection from Creditors of a Decedent After Death of Decedent 165
(4) Federal Tax and Other Liens 165
(a) Federal Liens and Forfeitures In General 165
(b) Federal Tax Liens 166
(5) Practical Issues Upon Sale 167
(6) Public Assistance Claims 167
Waiver, Abandonment, Involuntary Conversion 168
Death of Owner. 171
Ability of Creditor to Have the Property Surveyed 171
Circuit Court Jurisdiction 172
Availability of Personal Property Exemption 173
Hurricane Savings Account 174
Security Interest in Account of Debtor for Right to Payment from Sale of Debtor’s
Homestead 174


CHAPTER 6 - AD VALOREM TAX EXEMPTION AND VALUATION LIMITATIONS 176
General Ad Valorem Tax Exemption 176
B. Additional Special Tax Exemptions For Homesteads 178
(1) Non-Military Age, Disability or Death Exemptions 178
(a) Age 65 or Older 179
(b) Disabled Persons 181
(c) Totally and Permanently Disabled First Responders and Their Surviving Spouses 182
(d) Surviving Spouses of First Responders Dying in the Line of Duty 184
(2) Military Related Exemptions 185
(a) Active Duty Military 185
(b) Ex-Servicemembers With Total Disability and Specially Adapted Housing 186
(c) Age 65 Combat Disabled Veterans 187
(d) Veterans with Total and Permanent Disability and Their Surviving Spouses 188
(e) Surviving Spouses of Veterans Dying from Service-Connected Cause 190
(3) Other Exemptions 191
(a) Living Quarters for Grandparents or Parents 191
C. Valuation of Homestead Property for Ad Valorem Tax Purposes 193
(1) Date of Valuation 193
(2) Valuation Adjustments Relating to Damage or Destruction 193
(3) Other Valuation Rules 194
D. Save Our Homes Cap on Assessed Value Increases 195
(1) Change of Ownership May Trigger Revaluation 198
(2) Carryover of Value Differential to New Homestead (Portability) 200
E. Multiple Exemptions, Both Inside and Outside of Florida 205
F. Multiple Owners 206
(1) Tenancy in Common 207
(2) Tenancy by the Entireties and Tenancy with Rights of Survivorship 208
(3) Life Estate and Remainder Interests 209
G. Special Limits on the Exemption. 209
(1) Federal Preemption 209
(2) Statutory and Regulatory Requirements 209
(3) Special Benefits/Special Assessments 210
H. Application for Exemption 210
I. Miscellaneous Prerequisites and Requirements; Other Procedural Issues 215
J. Denial of Exemption 216
K. Waiver and Abandonment 217
L. Death of Owner 217
M. Revocation and Penalties 218
N. Correction of Assessment Errors 219
O. Tax Deferral 220
P. Taxpayer Bill of Rights 224
Q. Other Misc. Homestead Provisions 225


CHAPTER 7 - OTHER HOMESTEAD ISSUES 227
A. Judicial Determination of Homestead Status 227
(1) In a Probate Proceeding 228
(a) Petition, Proceedings, and Order 228
(b) Notice and Service Benefits - Formal Notice & Representation Statute 230
(c) Who Should be Noticed? 231
(d) Revocable Trust Ownership 234
(2) In a Nonprobate Proceeding 235
(3) Other Procedural Issues 236
(4) Forms 237
B. Documentary Stamp Taxes 237
C. Fraudulent Conveyance of Homestead Property 238
D. Low-Income Farmers 239
E. Post-death Collection of Public Assistance Debts 239
F. Hunting and Fishing Licenses 239
G. Civil Restitution Liens 239
H. Conveyancing Formalities 239
I. Application of Unallocated Payments 240
I. Information on the Assessment Rolls 241


CHAPTER 8 - MISCELLANEOUS HOMESTEAD PLANNING SITUATIONS
242
A. Owning Homestead in a Revocable Trust 242
B. Qualified Personal Residence Trust Aspects 243
C. Misc. Testamentary Document Provisions 244
D. Qualified Terminable Interest Property (QTIP) 244
E. Second Marriages 245
F. Using Lifetime and Other Transfers to Defeat Testamentary Devise Limitations 246
(1) Outright Gifting 246
(2) Inter Vivos Transfers to Trusts 247
(3) Transfers to Life Estates, Term of Years, Joint Tenancy and Other Non- trust
Transfers 248
G. Testamentary Transfers to Spousal Trusts 251


CHAPTER 9. Supplemental Materials 253
Diagram 1 – Restrictions on Transfers of Florida Homestead Property 254
Diagram 2 – Protected Homestead and Related Concepts 256

 

 

 

 


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Rubin on Florida Homestead is a comprehensive treatise available for purchase that covers all aspects of Florida homestead law. It is available for electronic delivery as a PDF eBook that can be read on any computer or device that can read PDF files.

Unique
The only dedicated treatise and guide to Florida homestead law

Detailed
269 pages of analysis, 1200+ footnotes

Helpful
Practice tips, cites and links to relevant authorities, planning assistance, and unique diagrams

Understandable
Makes a difficult subject understandable

Comprehensive
Covers restrictions on transfer and devise, probate administration, protection against forced sale, and ad valorem tax issues, along with other Florida homestead issues

Indispensable
So say many of our purchasers!

 

ABOUT THE AUTHOR

Charles (Chuck) Rubin is a practicing tax attorney in Boca Raton, Florida. He is a principal of and managing shareholder of Gutter Chaves Josepher Rubin Forman Fleisher Miller P.A. He is an ACTEC (American College of Trust and Estate counsel) fellow and a member of STEP (Society of Trust and Estate Practitioners), and a former adjunct professor at the University of Miami School of Law. Chuck has published numerous treatises, manuals, and articles, including two BNA Tax Management portfolios, and articles in Journal of Taxation, Estate Planning, Tax Management Estates, Gifts and Trusts Journal, and Tax Notes and is a regular contributor to Leimberg Information Services. He authors a popular tax blog at www.RubinonTax.blogspot.com, and speaks regularly at professional meetings and conferences, and was named 2015 & 2017 Attorney of the Year by Best Lawyers in Tax Law for the Miami metropolitan region. He is also the subject of favorable peer and other reviews by Chambers USA, Best Lawyers in America, Top Lawyers in South Florida, Who's Who in American Law, and Martindale-Hubbell.

FOREWORD

Florida homestead law is the bane of Florida lawyers. From law school through the bar exam and into practice in the real world, most lawyers have struggled with its concepts at one time or another. Too often, errors are committed.

Several aspects of Florida law contribute to its complexity and difficulty. First, it is a mixture of constitutional, statutory and common law. In contrast, much of Florida law is either based distinctly on statutory law, common law, or equity. Second, it is three separate areas of law - protections against forced sale, limits on transfers and devises, and ad valorem property taxes. Sometimes definitions and law in these areas overlap and intersect - sometimes they do not. Further, Florida’s homestead law is unique among U.S. and foreign jurisdictions.1 Lastly, many homestead concepts are difficult to apply, in and of themselves.

It is the goal of this treatise to address the law and issues relating to these three principal areas in depth, while still endeavoring to educate and avoiding unnecessary complexity. I hope this treatise fills a need and becomes an indispensable resource for Florida attorneys and other persons and professionals that need to be conversant with Florida homestead law.


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