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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Devise of Florida Homestead

Many Minnesota snowbirds change residency to Florida. However, the rules on who gets the Florida homestead on death are drastically different from Minnesota’s (and many other states’).  Florida Statute Section 732.401 provides that if the Florida homestead is not devised in accordance with Florida law and the Florida Constitution, and the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate, with the remainder vested in the descendents. Therefore, if these facts exist, a will or trust that attempts to transfer a Florida homestead to a Family Trust (a/k/a a “Bypass”or “Credit Shelter” trust) is per se void. Anecdotally, the author is aware of Florida counsel who have developed entire cottage industries around fixing improper transfers of Florida homesteads, mostly those prepared by out-of-state lawyers not licensed in Florida.

William S Forsberg

Leonard Street and Deinard

Minneapolis

 

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