Homestead Protection Not Afforded To House Titled In A Family Partnership

Only individuals can claim homestead protection. The Florida Constitution states that homestead protection applies to "natural persons." I read a case this week wherein a debtor had transferred their homestead property to a family limited partnership for estate planning and estate tax purposes. The debtor owned 95% of the limited partnership interests, and there was a partnership agreement permitted the same debtor to reside in the house. The debtor claimed that the property should qualify as exempt homestead because he had the right to occupy the house under the terms of the partnership agreement. The debtor claimed that he had indirect equitable title to the property, and that his interest was sufficient to warrant homestead protection from his creditors.

The court denied homestead protection. The court recognized that several courts previously protected homestead properties owned in a occupant’s living trust. However, the debtor sets ups a living trust, is the lifetime beneficiary, and has the right to revoke the trust thereby returning property in personal title. In the case of this partnership, the debtor/partner was not the only person creating the partnership (there were other partners), and the debtor did not have the legal right to unilaterally revoke the partnership. The court pointed out that the "natural person" referred to in the Constitution is the legal owner and not the person with rights of occupancy. Other than using a living trust, Florida residents that title their residence in entities such as partnerships, limited liability companies, or irrevocable trusts will not have homestead protection from their creditors.

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