Fla. Const. Art. X, § 4, subsections (a) and (b) read in relevant part:
- 4. Homestead; exemptions
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:
(1) a homestead …
* * * *
(b) These exemptions shall inure to the surviving spouse or heirs of the owner.
The term “heirs” encompasses the class of persons categorized in Florida’s intestacy statute [§732.103, Fla. Stat.] which includes the surviving spouse, lineal descendants, the decedent’s mother or father or both, the decedent’s brothers and sisters, and the descendents of the brothers and sisters. See Snyder v. Davis, 699 So. 2d 999 (Fla. 1997).
Homestead property is not an asset of the decedent’s estate and therefore, is protected from forced sale to pay the estate administration expenses. See §733.608(1), Fla. Stat. See also McKean v. Warburton, 919 So. 2d 341 (Fla. 2005) citing Clifton v. Clifton, 553 So. 2d 192, 194 n.3 (Fla. 5th DCA 1989) (Homestead property, whether devised or not, passes outside of the probate estate. Personal representatives have no jurisdiction over nor title to homestead, and it is not an asset of the estate.)
The constitutional homestead protection is disregarded when: (a) the testator devises the homestead to someone other than an heir [Refer to Fla. Const. Art. X, §4], or (b) the testator/settlor specifically or implicitly directs that the homestead property be sold and the proceeds made a part of the general probate/trust estate [See McKean v. Warburton, 919 So. 2d 341 (Fla. 2005); Engelke v. Estate of Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006); McEnderfer v. Keefe, 921 So.2d 597 (Fla. 2006); and Cutler v. Cutler, 994 So. 2d 341 (Fla. 3rd DCA 2008)(Settlor directed that her debts be satisfied from the homestead property held in trust should the funds in her estate be insufficient to satisfy those debts.)].