Blogs from May, 2009


Fourth District provides relief for loan burdened surviving spouses and relatives.

The distribution of homestead property in a probate estate is governed by the Probate Code, the Constitution, and Florida decisional case law. Even though there is firm statutory, constitutional, and judicial precedent dealing with homestead issues, there is always yet another novel issue or unanswered question to which there appears no clear answer. The Florida Fourth District Court of Appeals issued an opinion on April 29, 2009, answering the question of whether the real property that is facing foreclosure during the probate administration process may be distributed to the decedent’s surviving spouse.

What is a Homestead Property?

Homestead property was recognized by the Courts long ago as the place where the owner and his or her family reside, the place where the home or the house is, and adjoining land, where the family dwells. The Florida Probate Code defines homestead property as the property described in such constitutional provision on which at the death of the owner the exemption inures to the owner’s surviving spouse or heirs under the constitution. This refers to Article X section 4 of the Florida Constitution.

Why is this Property Protected? As a matter of public policy, the purpose of the constitutional homestead exemption is to promote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her relatives and loved ones may live beyond the reach of financial misfortune and the demands of creditors who have extended credit to the now-deceased property owner. Callava v. Feinberg, 864 So.2d 429 (Fla.DCA 2003). There are, however, a few exceptions to homestead protection: consensual liens (mortgages); taxes and assessments (homeowners associations) debts for improvement (mechanics liens), and fraud.

What if the Property is in Foreclosure? The question of whether the homestead protection is afforded to the surviving spouse for property owned by the decedent in order to protect it from foreclosure was recently answered in Bayview Loan Servicing v. Giblin, —So.2d—, 2009 WL 1139236 (April 29, 2009) an opinion issued by the Fourth District Court of Appeals.

The facts of Bayview involved the marriage of Decedent and Mrs. Giblin who married in 1959, had one child, and separated (but never divorced) in 1981. In 2000, the decedent purchased a piece of residential property in Broward County. The title to the property was placed in the decedent’s name. The wife and daughter lived in the home, but the decedent never did. Decedent died in 2001.

Decedent bequeathed his estate to his children and grandchildren. While probate was pending, the personal representative of the estate took out a mortgage on the property with the lender, Bayview Loan Servicing. Later, the Lender brought a foreclosure action against the estate. The wife filed a petition to determine the homestead status of the property.

After an evidentiary hearing, Broward County Probate Judge Mel Grossman found that the property was decedent’s homestead within the meaning of Article X, section 4 of the Florida Constitution. As such, the court ordered that “the title to the Property descended and the constitutional exemption from the claims of decedent’s creditors inured to the decedent’s surviving spouse, Nivia Giblin, as to a life estate, with a vested remainder in the descendants of the decedent in being at the time of the decedent’s death.”
Article X, section 4 of the Florida Constitution provides, in relevant part:

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for a house, field or other labor performed on the reality, the following property owned by a natural person:
(1) a homestead, . . . is located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family;. . .
(b) These exemptions shall inure to the surviving spouse or heirs of the owner.
(c) The homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. . . .

The Fourth District Court of Appeals agreed with Judge Grossman:

“The language of article X, section 4 is clear and unambiguous. Here, the decedent was a natural person who owned property occupied by his wife and child at the time of his death; thus, the property is a homestead. Because the decedent died leaving a spouse, the descent of his property is controlled by section 732.401(1), Florida Statutes (2001). As such, the wife is entitled to a life estate in the homestead with a vested remainder to the descendants. § 732.401(1), Fla. Stat.”

This decision by Judge Grossman at the trial court and appellate court is consistent with the purpose of the Florida Constitution’s homestead exemption, which is to preserve the home as shelter for the family so as to prevent a family from becoming a public charge.


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