Florida Homestead Protection Available to Non-Citizens

Florida Homestead Protection Available to Non-Citizens

 

The recent Florida 3rd DCA case of Estate of Favio Jose Grisolia Sanchez v. Pfeffer [enhanced version available to lexis.com subscribers] has found that "Florida Homestead Protection" from estate creditor claims is available to individuals who are in the United States on a temporary visa. The case focused on the issue of whether an individual in Florida on a temporary visa could form the requisite intent to make a residence a "permanent residence" so as to qualify for homestead protection against creditors.  The Florida Probate Court held that a deceased individual in Florida on a temporary visa could not form the requisite intent to make a residence a "permanent residence" so as to qualify for homestead protection against creditors. The Florida Probate Court found that since the decedent did not have the right to stay here on a permanent basis (he did not have a green card admitting him as a lawful permanent residence nor was he a U.S. citizen), the property was not homestead property.

On Appeal, the 3rd DCA reversed, and held the decedent's Florida real property was protected homestead. In doing so, they made a number of interesting observations and statements: (i) That the son was a U.S. citizen was an important fact as the Florida Constitution does not require the owner to reside on the property - it is enough that the owner's family reside on the property; and (ii) The intent question is to be answered based on the intent of the homesteader and not that of the U.S. Citizenship and Immigration Services. In the end, the Florida court noted that based on (a) continued residence at the property since its purchase, (b) possession of a visa that permitted residence here (albeit not on a permanent basis), and (c) the application that had been made for permanent resident status, homestead protection against forced sale was appropriate. 

View more information from Marc J. Soss at http://www.fl-estateplanning.com/ and http://info.fl-estateplanning.com/

Marc Soss' practice focuses on estate and tax planning; probate and trust administration and litigation; guardianship law; and corporate law in Southwest Florida.  Marc is a frequent contributor to LISI and has published articles and been quoted in the Florida Bar, Rhode Island Bar, North Carolina Bar, Association of the United States Navy, Lawyers USA, Military.Com, Forbes.Com, and CNN Business. Marc also serves as an officer in the United States Naval Reserve.

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