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Florida Home Looked Like Homestead But Wasn’t

James W. Martin

When a Florida resident dies, the Florida Constitution protects the surviving spouse and minor children from becoming homeless by prohibiting the decedent from leaving the homestead to anyone else. It says “[t]he homestead shall not be subject to devise if the owner is survived by spouse or minor child.” That seems pretty clear.

But, apparently, it’s not clear enough. A recent court decision held that a homestead held “as joint tenants with full rights of survivorship and not as tenants in common” passed to the joint owner and not as homestead property. In Marger v. De Rosa, 2011 WL 252942 (Fla. 2nd DCA 2011), a father who had two minor children purchased a home with his own mother. The deed said the son and his mother owned the home “as joint tenants with full rights of survivorship and not as tenants in common.” The father died. The court held that 100% of the home passed to his mother. No part of the home passed to his minor children.

The court’s reasoning is based on the way the law treats the form of ownership known as joint with survivorship. Upon the death of one of the joint owners, the title to the property passes automatically by operation of law to the surviving joint tenant. The court reasoned that the father’s interest in the home ended immediately on his death so there was nothing to leave to his minor children.

What’s interesting about this case is that 1) it is surprising to Florida probate lawyers and Florida real property lawyers because we have seen the courts expanding the protections of the Florida constitutional homestead over the last twenty years, 2) this case goes in the other direction and limits the protection, and 3) there is nothing new about the theories behind the case. While some interesting theories were presented by the minor children’s attorneys, the court chose not to go with them.

This case shows that long-standing legal theories have built-in potential to clash with each other when the right facts invoke them. In this case, it was a clash between a grandmother and her minor grandchildren over a home she owned with their deceased son/father. Hopefully, those set of facts won’t soon present themselves again.

When a Florida resident dies, the Florida Constitution protects the surviving spouse and minor children from becoming homeless by prohibiting the decedent from leaving the homestead to anyone else. It says “[t]he homestead shall not be subject to devise if the owner is survived by spouse or minor child.” That seems pretty clear. But, apparently, it’s not clear enough.

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