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Two Florida Third District Court of Appeals 2007 decisions provide a review of the meaning of the Florida Homestead Exemption in three different contexts. These decisions are Phillips et al. v. Hirshon, etc. el al., 32 Fla. L. Weekly D1151 (Fla. 3d DCA May 2, 2007) and Cutler v Cutler, 32 Fla. L.Weekly D538 (Fla. 3d DCA Feb. 28, 2007). In these decisions, the Court noted that homestead is given meaning in three different contexts under Florida law: 1. exemption from taxation per Art. VII, Section 6, Fla. Constit., 2. exemption from forced sale before and at death per Art. X, Section 4(a)-(b), Fla. Const., and 3. restrictions on devise and alienation, Art. X, Section 4(c), Fla. Const. See also Snyder v. Davis, 699 So.2d 999 (Fla. 1997)

The Court in Phillips observed in a footnote that the definition of homestead property for Article VII, section 6 purposes (taxation) is not the same as Article X, section 4 (forced sale and devise and alienation).

The Court in Cutler notes that neither the Florida Legislature nor the Florida Constitution provide a definition of what is homestead property for purposes of Art. X, Section 4 (a)(forced sale and devise and alienation). The Court states that based on the text of the Florida constitution and applicable case law, it is apparent that the following requirements must be satisfied for property to be determined as homestead property: 1. the property must be owned by a "natural person", 2. the person claiming the exemption must be a Florida resident who establishes that he intends to make the real property his permanent residence, 3. the person claiming the exemption must establish that he is the owner of the property, and 4. the property claimed as the homestead must satisfy the size and contiguity requirements of the constitution. Furthermore, the Court noted that the Florida Constitution does not limit the types of estates that are eligible for homestead status. Therefore, the exemption may generally attach to any estate in land whether it is a freehold or lesser estate. A life estate has been expressly found to be among the property interests eligible for homestead status. Furthermore, the Court noted that real property held in trust can be impressed with the character of homestead, including revocable and irrevocable trusts.

A provision protecting homestead property first appeared in the Florida Constitution of 1868. Art. IX, Section 1, Fla. Const. (1868). The Court noted that historical materials indicate that it was originally inspired by a desperate attempt by Floridians to repel the invations of "Yankee carpetbaggers" at the end of the Civil War. The limitation on devise and aliention first appeared in the 1885 Constitution. Art. IX, Section 1-3, Fla. Const. (1868).(305) 891-4055 - Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankrkuptcy Cases and Mortgage Modifications

When you file bankruptcy protection debtors are required to list their assets. This information is recorded in Schedule C of your filing documents or your petition. If you have children you may have concerns about their property and whether bankruptcy can assist in keeping them away from creditors. In most cases, this is not an... Read more »
The post Are My Children’s Assets Protected in Bankruptcy? appeared first on AllmandLaw.

When you file bankruptcy protection debtors are required to list their assets. This information is recorded in Schedule C of your filing documents or your petition. If you have children you may have concerns about their property and whether bankruptcy can assist in keeping them away from creditors. In most cases, this is not an... Read more »
The post Are My Children’s Assets Protected in Bankruptcy? appeared first on Allmand Law Firm PLLC.

A Totten trust, sometimes referred to as a "payable upon death" account, is a tentative trust that is revocable at will until the depositor completes the gift during his lifetime by some unequivocal act or declaration or subsequently dies. Totten Trust were first recognized in the 1904 New York case of  Matter of Totten. Since depositor has complete control over the funds during his lifetime, he is still regarded as the owner of the account. The Court in Matter of Totten ruled as follows:

            A deposit by one person of his own money, in his own name as trustee for another, standing alone,               does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust                       merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some                         unequivocal act or declaration, such as delivery of the pass book or notice to the beneficiary. In case             the depositor dies before the beneficiary without revocation, or some decisive act or declaration of               disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at             the death of the depositor. 
The Totten trust doctrine has been accepted in Florida.   The totten trust doctrine provides that the deposit by one person of his money in his own name as trustee for another is not a irrevocable trust during the lifetime of the depositor. "It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the passbook or notice to the beneficiary." Where the depositor dies before the beneficiary without revocation, it is presumed that an absolute trust is created as to the balance on hand at the death of the depositor.

Totten trusts may be revoked. There are no specific formalities required to evidence the revocation of a Totten trust. Any decisive act or declaration of disaffirmance during the lifetime of the owner will generally suffice.

Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankruptcy Cases and Mortgage Modifications (305) 891-4055