Florida Homes Titled A Certain Way Not Qualify As A Homestead.

Florida offers some of the strongest homestead protection laws in all of the United States.  When a resident of Florida dies, the law protects the surviving spouse and minor children from becoming homeless by preventing the decedent from giving his or her estate to someone else through a Will or Trust.  However, a recent court ruling may have weakened the homestead law.

These laws provided by the Florida Constitution are strong, but there are some limitations by recent court decisions.  A Florida Probate Court created a limitation in the case of Marger v. De Rosa, 57 So. 3d 866, 866 (Fla. Dist. Ct. App. 2011) where a mother and son owned a home as joint tenants with rights of survivorship.   The son, Mr. De Rosa, had two minor children when he purchased the home with his mother.  A few years later he died with no surviving spouse, two minor children, and an adult child.

The mother, Harriet S. De Rosa, claimed title to the property when her son died.  The mother claimed ownership because of how the property was titled.  A joint tenancy with rights of survivorship is when two or more people own the property equally for their lifetimes.  When one of the joint tenants dies, his or her interest in the property goes to the remaining joint tenants.  This means the decedent’s interest in the joint tenancy does not go to the decedent’s heirs.

In this case, the mother and son owed the property as joint tenants with rights of survivorship, which means that the son’s interest in the property was transferred to his mother as soon as he died.  But this type of conveyance could have been interpreted to directly conflict with Florida homestead laws that prevent a person from conveying his or interest in a homestead when he or she has minor children at death.

The court, in this case, sided with the mother and held 100 percent of the home passed to the mother.  The son’s interest in the home ended at the moment of his death, and there was no homestead protection for his minor children.  This case may have turned out differently if the home was purchased as joint tenants and then been changed to add the rights of survivorship later or if the son purchased the home and added the mother on the deed later.

This ruling came as a huge surprise to many of the Florida legal community.  Over the past 20 years, Florida legislature and courts have expanded Florida’s constitutional homestead laws.  This case is one of the first holdings to weaken Florida’s homestead laws in recent memory.  If the mother and son had held the property as tenants in common, it is possible the outcome of this case might have turned out differently.

There are other limitations to Florida’s Homestead laws.  For instance, if a person owns more than one home, then only one home can be named the homestead.  The secondary residence will not be protected from creditors.  Further, a person’s second home will not be protected from bankruptcy if he or she declared a Chapter 7 bankruptcy.

For more information on how to protect your Florida home for creditors, and to preserve the home for future generations, please contact The Law Office of David Goldman PLLC today at 904-685-1200.

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