Florida’s Homestead Exemption: The Constitutional Rule

Florida’s homestead protection is not statutory and not judge-made. It is constitutional.

Article X, section 4 of the Florida Constitution states:

SECTION 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, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family;

(2) personal property to the value of one thousand dollars.

(b) These exemptions shall inure to the surviving spouse or heirs of the owner.

(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.

This language does two critical things.

First, it prohibits forced sale of qualifying homestead property to satisfy most debts.

Second, it goes further: it states that no judgment shall be a lien on the homestead, subject only to the listed exceptions.

As a result, unsecured creditors generally cannot:

• Force a sale of homestead property, or
• Obtain judgment liens that attach to homestead property at all.

The exemption applies during life and, in probate, generally remains effective if the property is valid homestead at death and passes to the persons Florida law protects.