top of page

Restrictions on Transferring Homestead Property

Loune-Djenia Askew, Esq.

Apr 5, 2024

When it comes to homestead properties, owners enjoy a range of benefits. But these perks come with certain strings attached, especially when you are looking to transfer or pass on your property.

First off, “homestead” properties are not just where you hang your hat. In legal terms, a homestead is your primary residence that the law protects from most creditors and, in many states, offers tax advantages. But with these benefits, the law also imposes restrictions to ensure the property remains a sanctuary for the homeowner's family.

Restrictions on Selling or Gifting Homestead Property

Alienation of homestead property is not always a straightforward affair. If you are married, most states require the consent of your spouse to sell or gift the property, even if they are not on the deed. This rule helps protect the rights of spouses, ensuring they are not left without a home or say in its future.

Leaving Your Homestead in a Will

Bequeathing your homestead can also be complex. There are restrictions to prevent the accidental disinheritance of minor children. For instance, in Florida, you can not leave the homestead to your favorite nephew if you have surviving minor children or a spouse. The law aims to keep the roof over their heads, preventing you from willing the property to someone else.

Now, creditors usually can not force the sale of your homestead to satisfy debts. But, if you are transferring your homestead to dodge creditors, think again. Such transfers can be undone as fraudulent. Mortgages, property taxes, and mechanic's liens are typically the exceptions to this protection.

Planning for the Future

Considering these restrictions, estate planning becomes even more vital. Setting up a trust or carefully crafting your will with the help of a skilled attorney can help with these constraints, ensuring your property passes according to your wishes, while still following the letter of the law.

Homestead laws offer a shield for homeowners, but this shield comes with legal boundaries. Whether you are planning to sell, gift, or leave your homestead to someone after you are gone, it is important to understand these limits. Consulting with a knowledgeable attorney can help you maneuver these legal waters, keeping your homestead sailing smoothly into the future.

For more information, contact our office at Askew & Associates, P.A. by calling 954-546-2699.

Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns.

bottom of page