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Should My Florida Homestead Be In My Florida Living Trust?

Florida Homestead Consequences if No Last Will

One question that has often come into my practice, and has actually been the subject of some question within the Florida legal community, is whether a Florida Homestead should be titled into a Florida revocable living trust?

Defining a Florida Resident

In Florida, a homestead is generally understood as one’s personal place of residence. This means that one would need to be a Florida resident in order to claim a Florida homestead. A Florida resident is defined as someone who lives (is present) in Florida for at least 6 months and 1 day of the calendar year. The idea is that the person spends the “majority” of his/her time in Florida during the year.

With an established Florida residency, the next question is how to determine a Florida homestead. From this question springs the subject of this article, of whether you can title your Florida homestead in a revocable living trust in Florida.

Titling a Florida Homestead in a Living Trust [Pros and Cons]

Florida’s Unique Homestead Protection 

This question arises due in large part to the unique homestead protection offered under the Florida Constitution. First, when we talk about homestead protection in this context we are not talking about the tax exemption status offered by the county of residence. Rather homestead protection in this context refers to the protection against creditor attachment or protection against liens and/or judgments filed against the homestead by a creditor of the homeowner.

Florida is unique in offering 100% homestead protection provided the real property meets the requirements of 1/2 acre within a municipality or not more than 160 acres outside of a municipality.

Florida Court Decisions About Revocable Living Trusts and Homestead Protection 

Whether to Title a Florida Homestead in a Florida Living Trust Has Been Questioned Due to an Early by the Bankruptcy Court Ruling in this District.

Without diving into too much legalese, there was a decision by a bankruptcy court judge in a case called In re Bosonetto. In that case, the judge found that because the homestead in that case was held by a trust and not a “natural person”, the homestead protection did not apply. On this basis, the court allowed a creditor to force the sale of the home in order to pay debts. This result is, of course, something to avoid as part of a complete Florida asset protection plan.

The good news is since Bosonetto, 5 Florida courts (2 of which were bankruptcy judges) have opted NOT to follow that case, and have expressly determined that property held in a revocable living trust is exempt from forced sale under Florida homestead laws.

For you legal researcher types, the cases to review are as follows:

Callava v. Feinberg
Engelke v. Estate of Engelke
In Re Alexander
In Re Edwards
Cutler v. Cutler

Making an Informed Decision [Whether to Title your Homestead in a Revocable Trust]

The important thing to understand when making this decision, in light of the legal insight discussed in this article, are the pros and cons of titling your homestead in your revocable living trust.

Revocable Trust Titling Pros Revocable Trust Titling Cons
Avoid Probate Administration  Florida Supreme Court Question
Flexible Distribution Plan  Potential Decreased Asset Protection 

Summarizing the pros and cons, it is often very advantageous to title a Florida homestead in a revocable trust due to the major benefit of avoiding the Florida probate administration process in favor of a much simpler Florida trust administration. In addition, the flexibility of a revocable trust allows distribution planning options in the event of a special needs beneficiary in Florida OR if added protection is needed for IRA beneficiaries, estate planning in Florida for second marriages, and the list goes on.

However, when weighing pros and cons, those in high risk professions such as doctors OR contractors might consider opting to leave the homestead out of the revocable trust as an extra precaution.

Is there much of a chance that the Florida Supreme Court could overturn the decisions in favor of the Florida homestead and revocable trusts. It wouldn’t seem likely to this lawyer due to the court’s general understanding that a revocable trust is not really a separate entity from the trustmaker who is also the original owner of the homestead. Still, because we’re speculating, it is important to have all the facts and make an informed decision.

As a side note…you need to be sure to understand the difference between revocable and irrevocable trusts in Florida because homestead protection is NOT available for property in an irrevocable trust.

Another legal nugget…recent Florida legislation also allows a homestead to be afforded full protection if held in a Florida land trust.

Finally, it is very important to understand the spousal rules around the Florida homestead in order plan accordingly.

So, if your Florida homestead is not in your Florida revocable living trust you should have your Florida estate plan reviewed as part of a regular estate planning checkup by your favorite Florida estate planning attorney.

Steve Gibbs, Esq.


This is an updated version of a prior post published in 2015.  

4 comments… add one
  • Paul Novak May 17, 2018, 1:40 pm

    A great informative article. But it leaves me with a question. Can I place my newly purchased home that had a Florida homestead exemption into my revocable trust that I established in VT when I owned property there. If I place into my existing trust, will I lose my homestead exemption on my home in Florida?

    • gibbslawfl May 17, 2018, 2:06 pm

      Hi Paul, great question and we appreciate your interest. Hard to give legal advice in a blog comment without seeing the deed, etc. However in general the prior homestead in another state being deeded into a FL trust wouldn’t impact your current homestead in FL, though I suppose a county official could get a bit confused and you may need to address that issue. Let us know if we can help further. Best to you, Steve

  • George Finn October 2, 2018, 8:26 pm

    Here’s an argument in favor of the court treating a trust as a Non-Entity:
    Please tell me if it’s been tried.
    Florida citizens have been given a choice for disposing their estate after death.
    That choice is to use either a Will which is the vehicle for passing the estate through the Probate Administration, or you need to use a Revokable Trust as the vehicle to pass your estate through the Florida Probate Administration, A Trust, like a Will, it is simply a choice of vehicles for determining the future of assets.
    Like the Will, a Revocable Trust is a living document that can change daily according to the Testator/Grantor-Trustee. Like a Will, a Trust has no stand alone authority until the death of the Testator/Grantor-Trustee.
    How the Trust is categorized after that point, is anyone’s guess but until the Grantor totally disassociates himself from the management of the Trust it is neither a stand alone document nor a separate entity.

    • gibbslawfl October 3, 2018, 5:25 pm

      Hello George,

      I appreciate you visiting and commenting and in general I like your analysis and believe it is correct. I can’t really say whether your approach has been tried because that is just “the way it is” commonly recognized. In other words, In my opinion, a Living Trust is not generally recognized as a stand alone entity apart from the Grantor (not separate from Grantor) until his/her death, at which time it becomes an independent entity with its own legal status, tax id, etc.

      During the Grantor’s life, the Living Trust operates like an alter ego to the Grantor, not requiring additional tax filings, etc. This is all standard operating procedure. Good luck in your endeavors.


      Steve Gibbs, Esq.

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