Homestead Owned by Corporation: Spouse's Rights

A man owned a home and decided to get married. Before the marriage he created a Florida corporation and deed his home into the name of the corporation. He owned all the shares of the corporation. Later, when the husband wanted to refinance the house the lender inquired whether the non-owner spouse had an interest in the homestead which she would have to waive in order to give the new lender an enforceable mortgage. Although this issued arose in the context of a real estate transaction, the issue is relevant to understanding homestead rights and protection.

Florida law liberally interprets homestead protection and has a bias to give people an enforceable, vested legal interest in the property where they live. The Florida Constitution limits homestead interests to natural persons, but it does not define the nature of the homestead interest.. Almost any beneficial interest in a homestead property is sufficient to get homestead protection. For example, the beneficiary of a trust which hold legal title to a homestead may qualify for a protected interest in the homestead.

This case if different. The homestead is owned by a corporation which is not a natural person. The wife has no beneficial interest. She is not a stockholder in the corporation. I do not think the wife has a protected interest in the house in which she resides; she is a tenant in the corporation’s property. People who intend to protect their home from creditors should not transfer legal title to a corporation, partnership, or any other entity other than a revocable living trust of which they are the beneficiary.

posted by Jonathan Alper, asset protection and bankruptcy attorney, Orlando, Florida