HOMESTEAD PROPERTY AND JOINT OWNERSHIP
“The home to everyone is to him his castle and fortress, as well for his defense against injury and violence, as for his repose.” Edward Coke.
Recently, new case law has established that exactly how the Deed is worded it is very important in the determination of whether the property was a homestead property when one of the owners of the property dies.
Article X, section 4( c) of the Florida Constitution provides that “[t]he homestead shall not be subject to devise if the owner is survived by spouse or minor child.” If a Florida resident acquires property as a joint tenant with rights of survivorship while he has a minor child and lives in the primary residence, the property will not be deemed the decedent’s homestead, as it passes entirely at the time of his death to the other joint tenant.
The recent case of Marger v. DeRosa, 57 So.3d 866 (Fla. 2nd DCA 2011) holds that since the property was not homestead property at the time of the joint purchase, the homestead restriction was determined not to apply. In Marger, Mr. DeRosa and his mother, Harriet S. DeRosa purchased a home in Largo, Florida as joint tenants with full right of survivorship and not as tenants in common. Id. At the time of the conveyance, Mr. DeRosa had two minor children. When he died intestate in 2008, Mr. DeRosa had no surviving spouse, but he did have two minor children and one adult child. Id. At the time of Mr. DeRosa’s death, his mother, Harriet, claimed title to the property, but the Administrator ad Litem of Mr. DeRosa’s estate claimed that the house should have homestead status for the benefit of the two minor children. Id.
Both the trial court and the Second District Court of Appeals found that the property was not homestead property of Mr. DeRosa when it was jointly purchased with his mother, as Mr. DeRosa’s property interest ceased upon his demise, and his mother, Harriet, became the sole owner of the property. Id. The Court held that “this language [in the Constitution] does not restrict the type of interests in real property a person may acquire or how a person may title his or her property. Instead, it restricts a person’s attempt to devise property he or she owns when homestead status has attached to that property.” Id.
Since the property purchased by Mr. DeRosa and his mother was not homestead property at the time of the purchase by the two of them as joint tenants with full right of survivorship and not as tenants in common, the homestead restriction was determined not to apply. Id.
If you believe that a decedent’s property should be determined to be homestead property, it is imperative that you have a competent attorney review the deed and purchase documents to determine the specific language used to purchase the property, as it may be necessary to commence litigation in order to have the Court determine whether the decedent’s property was considered a homestead property at the time of purchase and at the time of his or her demise.