Recalde Law Firm, P.A. is a Florida law firm with an office in Miami, Florida. We advise on United States law only. We do not practice Mexican law, and we do not give Mexican tax or succession advice. We do not practice the law of any other country. Formation of a non-U.S. entity, and the local law of that jurisdiction, are matters for local counsel. We handle the U.S. architecture: classification, the documents a U.S. custodian and a U.S. court will read, and coordination with the family's tax adviser.
Florida homestead is a state-law status. It is not the federal estate-tax credit for a nonresident who is not a U.S. citizen, and it is not a tax benefit that follows the passport. It attaches, when the facts are there, to a natural person's residence in Florida. An owner who is not a U.S. citizen, and who actually resides in the Florida home, can have homestead. An owner who lives elsewhere can still have homestead if the owner's family resides in the Florida home. Buying a condominium in one's own name, without residence by the owner or the owner's family, does not by itself create homestead.
The service page is Florida real estate owned by non-U.S. persons. If the transferee is a foreign trust, the trust work is Foreign Trusts. The Spanish note is homestead en Florida y la transferencia a un Trust.
Devise, when a spouse or a minor child survives
Article X, section 4(c) of the Florida Constitution provides that the homestead shall not be subject to devise if the owner is survived by a spouse or a minor child, except that the homestead may be devised to the owner's spouse if there is no minor child. Section 732.4015, Florida Statutes, states the same limit. For that purpose, the statute treats the owner as including the grantor of a trust described in section 733.707(3) that is in existence at death, and it treats a disposition by that trust as a devise of the homestead portion. A will or a revocable trust that leaves the homestead to someone other than the spouse, when a spouse and no minor child survive, is outside the exception. When a minor child survives, the constitutional text does not allow a devise, including a devise to the spouse.
We do not restate the descent that follows an invalid devise, and we do not cite the cases that have colored particular devises. Those questions are read against the statute and the constitution on the family's facts. A spouse may be able to waive homestead rights in the manner Florida law allows. A minor child cannot. Any waiver is drafted for the statute, not summarized as a form the reader should copy.
A lifetime deed, and the spouse's joinder
The same constitutional section provides that the owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale, or gift. A deed of homestead by a married owner without the spouse is the deed Florida practice refuses. Section 689.111 provides that joinder may be accomplished through a power of attorney executed in the manner of a deed. It does not dispense with joinder. If the home is moving to a trustee, the deed to the trustee needs the spouse on it when the owner is married and the property is homestead.
Section 732.4017 addresses a lifetime transfer of homestead, including a transfer in trust. If the owner transfers an interest during life and does not retain a power, alone or with any other person, to revoke or revest that interest, the statute says the transfer is not a devise for purposes of section 732.4015. The section defines a transfer in trust by reference to the absence of a right of revocation as section 733.707(3)(e) uses that term, and it says the transferor may keep certain other interests without the transfer becoming a devise. The statute also says it is intended to clarify existing law. It does not amend the constitution. A deed to the trustee of a fully revocable trust, where the owner can take the property back, is not the transfer section 732.4017 describes. Whether a particular trust funding is a lifetime alienation or a devise is read from the powers the owner kept. We do not resolve that reading with a slogan, and we do not rely on case names to do it.
Separate from the federal estate tax
Homestead protections — the devise limit, the restraint on alienation, and the exemption from creditors' claims in the constitution — do not decide whether the property is in a nonresident's federal gross estate. U.S. real property is U.S.-situs property for the federal estate tax. The $13,000 credit in section 2102(b), and the $60,000 filing threshold in the Form 706-NA instructions, are federal figures. They are not a Florida homestead exemption, and a homestead cap on local property tax is a third figure we do not mix in. Families from Mexico, Colombia, or Peru who live in the Florida home have the homestead question. Families from Argentina, Chile, or Ecuador who own the home and live elsewhere generally have a title and probate question instead, and they do not acquire homestead by visiting. None of them should treat a Florida homestead as an answer to the federal estate tax.
There is no family's house described on this page. The documents are the deed, the trust, and, if the owner is married, the spouse's joinder. Record the deed the recording office will accept, after the tax adviser has modeled the transfer. See funding a foreign trust.