Bayview Loan Servicing, LLC v. Giblin, — So.3d —-, 2009 WL 1139236 (Fla. 4th DCA Apr 29, 2009)
Decedent and Nivia Giblin were married in 1959. They had a daughter together. In 1981 they separated but never divorced. In 2000, decedent purchased a piece of residential property in Broward County. Title to the property was placed in the decedent’s name. The wife and daughter lived in the home, but decedent never did. Decedent died in 2001.
Is this the decedent’s homestead property? YES
As crazy as it may sound, yes, you can own homestead property you’ve never lived in if your “family” lives in the house. You get to this conclusion by applying the literal text of Article X, section 4 of the Florida Constitution, which provides in relevant part as follows:
(a) There shall be exempt from forced sale under process of any court . . . the following property owned by a natural person:
(1) a homestead . . . [if it is] 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 spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child….
Based on this language the 4th DCA affirmed a trial-court order ruling that the subject property was in fact the decedent’s homestead . . . even if he never lived in the place. Here’s how the court summarized its reasoning:
The language of article X, section 4 is clear and unambiguous. Here, decedent was a natural person who owned property occupied by his wife and child at the time of his death; thus, the property is homestead. Because 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.
By the way, this isn’t the first time a court has come to this conclusion. See In re Colwell, 196 F.3d 1225 (11th Cir. 1999) (Under Florida law, homestead exemption can be established to each of two people who, while married, are legitimately living apart in separate residences, if they otherwise meet requirements of exemption.); Law v. Law, 738 So.2d 522 (Fla. 4th DCA 1999) (Husband, who permanently resided in separate home from wife, was entitled to homestead exemption on that residence from former wife’s lien, even though husband and current wife owned another home for which they claimed homestead exemption, where there was no indication that husband and wife were separated for illegitimate reasons.)
Lesson learned? . . . Florida’s homestead law is NOT intuitive.
You can’t assume you know the answer to that “simple” homestead question a colleague or client calls about “just to pick your brain.” If the stakes are high enough, researching the issue – before it’s litigated – is always the way to go. Once you’re in court and briefing the issue you may be surprised by what you find . . . as I’m sure the losing side in this case was.