Exempt property under the Florida Probate Code: 2009 Amendments to F.S. [section]732.402 and statutory exemptions.

• Author: Cuello, Alex
• Position: Elder Law

In Florida, there is constitutional exempt property and statutory exempt property under the Florida Probate Code. Both exemptions provide protection from creditors' claims. One of the more coveted exemptions is the homestead exemption found in Fla. Const. art. X, [section]4. The constitution also exempts up to $1,000 of personal property. (1) These exemptions inure to the surviving spouse or heirs of the owner. (2) The Florida Probate Code supplements the constitutional exemptions by statutorily including additional assets as exempt from the claims of creditors. (3) "This statute is intended to protect the surviving spouse and children by preserving a portion of the decedent's estate against the claims of unsecured creditors." (4) Specifically, F.S. [section]732.402 provides that "[i]f a decedent was domiciled in this state at the time of death, the surviving spouse, or, if there is no surviving spouse, the children of the decedent shall have the right to a share of the estate of the decedent ... being designated 'exempt property.'"

During the 2009 Florida Legislative Session, CS/HB 599 was passed and signed into law by Governor Charlie Crist, amending F.S. [section]732.402. The amendments revise criteria for certain household items, motor vehicles, and tuition programs as exempt. (5) The act's effective date was July 1, 2009. (6)

The household furnishing exemption was doubled. As amended, statutory exempt property shall consist of household furniture, furnishings, and appliances in the decedent's usual place of abode up to a net value of $20,000 as of the date of death. (7) Just because the household furnishings are found on the date of death at the decedent's usual place of abode does not bring them into the estate. "Section 732.402 is not intended to, and does not, deprive the surviving family members or third parties of their existing rights to personal property within the decedent's home at the time of the decedent's death." (8) However, the personal representative may maintain an action of replevin to recover possession of estate property not voluntarily surrendered upon demand or to determine title to the property. (9)

The automobile exemption is now limited to "two motor vehicles as defined in s.316.003(21), which do not, individually as to either such motor vehicle, have a gross vehicle weight in excess of 15,000 pounds, held in the decedent's name and regularly used by the decedent or members of the decedent's immediate family as...