October 20, 2017

Are You a Florida Resident?

Being a Florida resident has many advantages. The homestead property tax exemption can save hundreds of dollars per year on your property tax bill, and can save even more if you home increases in value after you become a Florida resident. There is no state income tax and no state inheritance or estate taxes. There are protections that exempt a homestead residence, life insurance, annuities, and retirement accounts from creditor claims. Best of all, there is plenty of sunshine and no snow or ice.

We're often asked about the requirements for becoming a Florida resident. The answer varies, depending upon who needs proof of your residency. Some aggressive tax states will try to claim former residents as current residents for purposes of imposing their state income tax or estate tax.

In probate court, proof of residence is combination of factors reviewed by the court to determine whether the decedent had "intent" to continue Florida resident status or establish another residence at the time of death. Many residents, especially "snowbirds", continue to return to their prior state of residence on an annual basis. They might maintain professional relationships with advisors, civic organizations, family members, and houses of worship in their prior state of residence. They might even continue to maintain a residence in both states.

The statutes for the homestead property tax exemption offer some good guidelines to establish residency. Section 196.015 lists the facts considered by the county property appraiser to determine whether the homestead property tax exemption should be granted for the Florida residence. To qualify as a homestead residence, it must be your primary residence, so you have to be a Florida resident. Here's what the statute, as last amended in 2009, provides:

196.015 Permanent residency; factual determination by property appraiser. -

Intention to establish a permanent residence in this state is a factual determination to be made, in the first instance, by the property appraiser. Although any one factor is not conclusive of the establishment or nonestablishment of permanent residence, the following are relevant factors that may be considered by the property appraiser in making his or her determination as to the intent of a person claiming a homestead exemption to establish a permanent residence in this state:

(1) A formal declaration of domicile by the applicant recorded in the public records of the county in which the exemption is being sought.
(2) Evidence of the location where the applicant's dependent children are registered for school.
(3) The place of employment of the applicant.
(4) The previous permanent residency by the applicant in a state other than Florida or in another country and the date non-Florida residency was terminated.
(5) Proof of voter registration in this state with the voter information card address of the applicant, or other official correspondence from the supervisor of elections providing proof of voter registration, matching the address of the physical location where the exemption is being sought.
(6) A valid Florida driver license issued under s. 322.18 or a valid Florida identification card issued under s. 322.051 and evidence of relinquishment of driver licenses from any other states.
(7) Issuance of a Florida license tag on any motor vehicle owned by the applicant.
(8) The address as listed on federal income tax returns filed by the applicant.
(9) The location where the applicant's bank statements and checking accounts are registered.
(10) Proof of payment for utilities at the property for which permanent residency is being claimed.

Note that the number of days present in Florida is not a factor. It is also important that none of these factors indicate residence in another state.

Florida residence status has important consequences for the administration of estates. Florida has perhaps the strongest protections for surviving spouses and several protections against creditor claims to protect family members. Florida also has special requirements for the execution of wills, powers of attorneys, and trusts. A document that is valid in another state might not be valid or enforceable in Florida.

This information is not intended to constitute legal advice or an agreement to provide legal representation. It is important to meet with a Florida attorney after you have established Florida as your state of residence to insure that your wishes will be honored and that your family is protected.