METHOD OF SETTING APART HOMESTEAD AND EXEMPTIONS
222.01 - Designation of homestead by owner before levy
History.- s. 1, ch. 1715, 1869; RS 1998; GS 2520; RGS 3875; CGL 5782; s. 20, ch. 73-334; s. 2, ch. 77-299; s. 1, ch. 83-40; s. 1195, ch. 95-147; s. 25, ch. 2000-258; s. 17, ch. 2005-241.
- (1) Whenever any natural person residing in this state desires to avail himself or herself of the benefit of the provisions of the constitution and laws exempting property as a homestead from forced sale under any process of law, he or she may make a statement, in writing, containing a description of the real property, mobile home, or modular home claimed to be exempt and declaring that the real property, mobile home, or modular home is the homestead of the party in whose behalf such claim is being made. Such statement shall be signed by the person making it and shall be recorded in the circuit court.
- (2) When a certified copy of a judgment has been filed in the public records of a county pursuant to chapter 55, a person who is entitled to the benefit of the provisions of the State Constitution exempting real property as homestead and who has a contract to sell or a commitment from a lender for a mortgage on the homestead may file a notice of homestead in the public records of the county in which the homestead property is located in substantially the following form:NOTICE OF HOMESTEADTo: (Name and address of judgment creditor as shown on recorded judgment and name and address of any other person shown in the recorded judgment to receive a copy of the Notice of Homestead). You are notified that the undersigned claims as homestead exempt from levy and execution under Section 4, Article X of the State Constitution, the following described property: (Legal description) The undersigned certifies, under oath, that he or she has applied for and received the homestead tax exemption as to the above-described property, that is the tax identification parcel number of this property, and that the undersigned has resided on this property continuously and uninterruptedly from (date) to the date of this Notice of Homestead. Further, the undersigned will either convey or mortgage the above-described property pursuant to the following: (Describe the contract of sale or loan commitment by date, names of parties, date of anticipated closing, and amount. The name, address, and telephone number of the person conducting the anticipated closing must be set forth.) The undersigned also certifies, under oath, that the judgment lien filed by you on (date) and recorded in Official Records Book , Page , of the Public Records of County, Florida, does not constitute a valid lien on the described property.YOU ARE FURTHER NOTIFIED, PURSUANT TO SECTION 222.01 ET SEQ., FLORIDA STATUTES, THAT WITHIN 45 DAYS AFTER THE MAILING OF THIS NOTICE YOU MUST FILE AN ACTION IN THE CIRCUIT COURT OF COUNTY, FLORIDA, FOR A DECLARATORY JUDGMENT TO DETERMINE THE CONSTITUTIONAL HOMESTEAD STATUS OF THE SUBJECT PROPERTY OR TO FORECLOSE YOUR JUDGMENT LIEN ON THE PROPERTY AND RECORD A LIS PENDENS IN THE PUBLIC RECORDS OF THE COUNTY WHERE THE HOMESTEAD IS LOCATED. YOUR FAILURE TO SO ACT WILL RESULT IN ANY BUYER OR LENDER, OR HIS OR HER SUCCESSORS AND ASSIGNS, UNDER THE ABOVE-DESCRIBED CONTRACT OF SALE OR LOAN COMMITMENT TO TAKE FREE AND CLEAR OF ANY JUDGMENT LIEN YOU MAY HAVE ON THE PROPERTY.This day of , 2 . (Signature of Owner) (Printed Name of Owner) (Owner’s Address) Sworn to and subscribed before me by who is personally known to me or produced as identification, this day of , 2 . Notary Public
- (3) The clerk shall mail a copy of the notice of homestead to the judgment lienor, by certified mail, return receipt requested, at the address shown in the most recent recorded judgment or accompanying affidavit, and to any other person designated in the most recent recorded judgment or accompanying affidavit to receive the notice of homestead, and shall certify to such service on the face of such notice and record the notice. Notwithstanding the use of certified mail, return receipt requested, service shall be deemed complete upon mailing.
- (4) A lien pursuant to chapter 55 of any lienor upon whom such notice is served, who fails to institute an action for a declaratory judgment to determine the constitutional homestead status of the property described in the notice of homestead or to file an action to foreclose the judgment lien, together with the filing of a lis pendens in the public records of the county in which the homestead is located, within 45 days after service of such notice shall be deemed as not attaching to the property by virtue of its status as homestead property as to the interest of any buyer or lender, or his or her successors or assigns, who takes under the contract of sale or loan commitment described above within 180 days after the filing in the public records of the notice of homestead. This subsection shall not act to prohibit a lien from attaching to the real property described in the notice of homestead at such time as the property loses its homestead status.
- (5) As provided in s. 4, Art. X of the State Constitution, this subsection shall not apply to:
- (a) Liens and judgments for the payment of taxes and assessments on real property.
- (b) Liens and judgments for obligations contracted for the purchase of real property.
- (c) Liens and judgments for labor, services, or materials furnished to repair or improve real property.
- (d) Liens and judgments for other obligations contracted for house, field, or other labor performed on real property.
222.02 - Designation of homestead after levy
Whenever a levy is made upon the lands, tenements, mobile home, or modular home of such person whose homestead has not been set apart and selected, such person, or the person’s agent or attorney, may in writing notify the officer making such levy, by notice under oath made before any officer of this state duly authorized to administer oaths, at any time before the day appointed for the sale thereof, of what such person regards as his or her homestead, with a description thereof; and the remainder only shall be subject to sale under such levy.
History.- s. 2, ch. 1715, 1869; RS 1999; GS 2521; RGS 3876; CGL 5783; s. 3, ch. 77-299; s. 2, ch. 83-40; s. 1196, ch. 95-147.
222.03 - Survey at instance of dissatisfied creditor
If the creditor in any execution or process sought to be levied is dissatisfied with the quantity of land selected and set apart, and shall himself or herself, or by his or her agent or attorney, notify the officer levying, the officer shall at the creditor’s request cause the same to be surveyed, and when the homestead is not within the corporate limits of any town or city, the person claiming said exemption shall have the right to set apart that portion of land belonging to him or her which includes the residence, or not, at the person’s option, and if the first tract or parcel does not contain 160 acres, the said officer shall set apart the remainder from any other tract or tracts claimed by the debtor, but in every case taking all the land lying contiguous until the whole quantity of 160 acres is made up. The person claiming the exemption shall not be forced to take as his or her homestead any tract or portion of a tract, if any defect exists in the title, except at the person’s option. The expense of such survey shall be chargeable on the execution as costs; but if it shall appear that the person claiming such exemption does not own more than 160 acres in the state, the expenses of said survey shall be paid by the person directing the same to be made.
History.- s. 3, ch. 1715, 1869; s. 1, ch. 1944, 1873; RS 2000; GS 2522; RGS 3877; CGL 5784; s. 1197, ch. 95-147.
222.04 - Sale after survey
After such survey has been made, the officer making the levy may sell the property levied upon not included in such property set off in such manner.
History.- s. 4, ch. 1715, 1869; RS 2001; GS 2523; RGS 3878; CGL 5785.
222.05 - Setting apart leasehold
Any person owning and occupying any dwelling house, including a mobile home used as a residence, or modular home, on land not his or her own which he or she may lawfully possess, by lease or otherwise, and claiming such house, mobile home, or modular home as his or her homestead, shall be entitled to the exemption of such house, mobile home, or modular home from levy and sale as aforesaid.
History.- s. 5, ch. 1715, 1869; RS 2002; GS 2524; RGS 3879; CGL 5786; s. 1, ch. 77-299; s. 1198, ch. 95-147.
222.061 - Method of exempting personal property; inventory
History.- s. 5, ch. 85-272; s. 61, ch. 87-224; s. 1199, ch. 95-147.
- (1) When a levy is made by writ of execution, writ of attachment, or writ of garnishment upon personal property which is allowed by law or by the State Constitution to be exempt from levy and sale, the debtor may claim such personal property to be exempt from sale by making, within 15 days after the date of the levy, an inventory of his or her personal property. The inventory shall show the fair market valuation of the property listed and shall have an affidavit attached certifying that the inventory contains a correct list of all personal property owned by the debtor in this state and that the value shown is the fair market value of the property. The debtor shall designate the property listed in the schedule which he or she claims to be exempt from levy and sale.
- (2) The original inventory and affidavit shall be filed with the court which issued the writ. The debtor, by mail or hand delivery, shall promptly serve one copy on the judgment creditor and furnish one copy to the sheriff who executed the writ. If the creditor desires to object to the inventory, he or she shall file an objection with the court which issued the writ within 5 days after service of the inventory, or he or she shall be deemed to admit the inventory as true. If the creditor does not file an objection, the clerk of the court shall immediately send the case file to the court issuing the writ, and the court shall promptly issue an order exempting the items claimed. Such order shall be sent by the court to the sheriff directing him or her to promptly redeliver to the debtor any exempt property under the levy and to sell any nonexempt property under the levy according to law.
- (3) If the creditor files an objection, he or she shall promptly serve, by mail or hand delivery, one copy on the debtor and furnish one copy to the sheriff who executed the writ. Upon the filing of an objection, the clerk shall immediately send the case file to the court issuing the writ, and the court shall automatically schedule a prompt evidentiary hearing to determine the validity of the objection and shall enter its order therein describing the exempt and nonexempt property. Upon its issuance, the order shall be sent by the court to the sheriff directing him or her to promptly redeliver to the debtor any exempt property under the levy and to sell the nonexempt property under the levy according to law.
- (4) The court shall appoint a disinterested appraiser to assist in its evidentiary hearing unless the debtor and creditor mutually waive the appointment of such appraiser. The appraiser shall take and file an oath that he or she will faithfully appraise the property at its fair market value and that he or she will file a signed and sworn appraisal with the court as required by law. Notice of the time and place of the inspection of the property for the purpose of its appraisal shall be given by the appraiser to the debtor, creditor, and sheriff, at least 24 hours before the inspection is made. The appraiser shall be entitled to a reasonable fee as determined by the court for his or her services. The appraiser’s fee shall be taxed as costs, but no costs shall be assessed against the debtor for the proceedings under this section if the debtor prevails on his or her claim of exemption. The court may require the creditor to deposit a cash bond, a surety bond, or other security, conditioned on the creditor’s obligation to pay reasonable appraisal expenses, not to exceed $100.
- (5) During the pendency of proceedings under this section, the sheriff shall safeguard the property seized under the writ, and the creditor shall deposit sufficient moneys with the sheriff to pay the cost of such safeguarding until the property is sold or redelivered to the debtor. When the sheriff receives a copy of a court order identifying which property has been declared exempt and which property has been declared not exempt and ordering the sale of the property not exempt from levy, he or she shall sell the property.
- (6) The party who successfully maintains his or her claim at the time of the evidentiary hearing may be entitled to reasonable attorney’s fees and shall be entitled to costs. The costs shall include, but not be limited to, appraisal fees, storage fees, and such other costs incurred as a result of the levy.
- (7) No inventory or schedule to exempt personal property from sale shall be accepted prior to a levy on the property.
222.07 - Defendant’s rights of selection
Upon the completion of the inventory the person entitled to the exemption, or the person’s agent or attorney, may select from such an inventory an amount of property not exceeding, according to such appraisal, the amount of value exempted; but if the person so entitled, or the person’s agent or attorney, does not appear and make such selection, the officer shall make the selection for him or her, and the property not so selected as exempt may be sold.
History.- s. 8, ch. 1715, 1869; RS 2004; GS 2526; RGS 3881; CGL 5788; s. 1200, ch. 95-147.
222.08 - Jurisdiction to set apart homestead and exemption
The circuit courts have equity jurisdiction to order and decree the setting apart of homesteads and of exemptions of personal property from forced sales.
History.- s. 2, ch. 3246, 1881; RS 2005; GS 2527; RGS 3882; CGL 5789.
222.09 - Injunction to prevent sale
The circuit courts have equity jurisdiction to enjoin the sale of all property, real and personal, that is exempt from forced sale.
History.- s. 1, ch. 3246, 1881; RS 2006; GS 2528; RGS 3883; CGL 5790.
222.10 - Jurisdiction to subject property claimed to be exempt
The circuit courts have equity jurisdiction upon bill filed by a creditor or other person interested in enforcing any unsatisfied judgment or decree, to determine whether any property, real or personal, claimed to be exempt, is so exempt, and in case it be not exempt, the court shall, by its decree subject it, or so much thereof as may be necessary, to the satisfaction of said judgment or decree and may enjoin the sheriff or other officer from setting apart as exempt property, real or personal, which is not exempt, and may annul all exemptions made and set apart by the sheriff or other officer.
History.- s. 3, ch. 3246, 1881; RS 2007; GS 2529; RGS 3884; CGL 5791.
222.11 - Exemption of wages from garnishment
History.- s. 1, ch. 2065, 1875; RS 2008; GS 2530; RGS 3885; CGL 5792; s. 1, ch. 81-301; s. 6, ch. 85-272; s. 2, ch. 93-256; s. 1, ch. 2010-97.
- (1) As used in this section, the term:
- (a) “Earnings” includes compensation paid or payable, in money of a sum certain, for personal services or labor whether denominated as wages, salary, commission, or bonus.
- (b) “Disposable earnings” means that part of the earnings of any head of family remaining after the deduction from those earnings of any amounts required by law to be withheld.
- (c) “Head of family” includes any natural person who is providing more than one-half of the support for a child or other dependent.
- (2)(a) All of the disposable earnings of a head of family whose disposable earnings are less than or equal to $750 a week are exempt from attachment or garnishment.
- (b) Disposable earnings of a head of a family, which are greater than $750 a week, may not be attached or garnished unless such person has agreed otherwise in writing. The agreement to waive the protection provided by this paragraph must:
- 1. Be written in the same language as the contract or agreement to which the waiver relates;
- 2. Be contained in a separate document attached to the contract or agreement; and
- 3. Be in substantially the following form in at least 14-point type:IF YOU PROVIDE MORE THAN ONE-HALF OF THE SUPPORT FOR A CHILD OR OTHER DEPENDENT, ALL OR PART OF YOUR INCOME IS EXEMPT FROM GARNISHMENT UNDER FLORIDA LAW. YOU CAN WAIVE THIS PROTECTION ONLY BY SIGNING THIS DOCUMENT. BY SIGNING BELOW, YOU AGREE TO WAIVE THE PROTECTION FROM GARNISHMENT. (Consumer’s Signature) (Date Signed) I have fully explained this document to the consumer. (Creditor’s Signature) (Date Signed) The amount attached or garnished may not exceed the amount allowed under the Consumer Credit Protection Act, 15 U.S.C. s. 1673.
- (c) Disposable earnings of a person other than a head of family may not be attached or garnished in excess of the amount allowed under the Consumer Credit Protection Act, 15 U.S.C. s. 1673.
- (3) Earnings that are exempt under subsection (2) and are credited or deposited in any financial institution are exempt from attachment or garnishment for 6 months after the earnings are received by the financial institution if the funds can be traced and properly identified as earnings. Commingling of earnings with other funds does not by itself defeat the ability of a head of family to trace earnings.
222.13 - Life insurance policies; disposition of proceeds
History.- s. 1, ch. 1864, 1872; RS 2347; s. 1, ch. 4555, 1897; s. 1, ch. 5165, 1903; GS 3154; RGS 4977; CGL 7065; s. 1, ch. 29861, 1955; s. 1, ch. 59-333; s. 1, ch. 63-230; s. 1, ch. 70-376; s. 51, ch. 71-355; s. 1202, ch. 95-147.
- (1) Whenever any person residing in the state shall die leaving insurance on his or her life, the said insurance shall inure exclusively to the benefit of the person for whose use and benefit such insurance is designated in the policy, and the proceeds thereof shall be exempt from the claims of creditors of the insured unless the insurance policy or a valid assignment thereof provides otherwise. Notwithstanding the foregoing, whenever the insurance, by designation or otherwise, is payable to the insured or to the insured’s estate or to his or her executors, administrators, or assigns, the insurance proceeds shall become a part of the insured’s estate for all purposes and shall be administered by the personal representative of the estate of the insured in accordance with the probate laws of the state in like manner as other assets of the insured’s estate.
- (2) Payments as herein directed shall, in every such case, discharge the insurer from any further liability under the policy, and the insurer shall in no event be responsible for, or be required to see to, the application of such payments.
222.14 - Exemption of cash surrender value of life insurance policies and annuity contracts from legal process
The cash surrender values of life insurance policies issued upon the lives of citizens or residents of the state and the proceeds of annuity contracts issued to citizens or residents of the state, upon whatever form, shall not in any case be liable to attachment, garnishment or legal process in favor of any creditor of the person whose life is so insured or of any creditor of the person who is the beneficiary of such annuity contract, unless the insurance policy or annuity contract was effected for the benefit of such creditor.
History.- s. 1, ch. 10154, 1925; CGL 7066; s. 1, ch. 78-76.
222.15 - Wages or reemployment assistance or unemployment compensation payments due deceased employee may be paid spouse or certain relatives
History.- s. 1, ch. 7366, 1917; RGS 4979; CGL 7068; s. 1, ch. 20407, 1941; s. 1, ch. 63-165; ss. 17, 35, ch. 69-106; s. 1, ch. 73-283; s. 10, ch. 79-7; s. 5, ch. 83-174; s. 1203, ch. 95-147; s. 7, ch. 2003-36; s. 96, ch. 2011-142; s. 52, ch. 2012-30.
- (1) It is lawful for any employer, in case of the death of an employee, to pay to the wife or husband, and in case there is no wife or husband, then to the child or children, provided the child or children are over the age of 18 years, and in case there is no child or children, then to the father or mother, any wages or travel expenses that may be due such employee at the time of his or her death.
- (2) It is also lawful for the Department of Economic Opportunity, in case of death of any unemployed individual, to pay to those persons referred to in subsection (1) any reemployment assistance or unemployment compensation payments that may be due to the individual at the time of his or her death.