Marger v. De Rosa, — So.3d —-, 2011 WL 252942 (Fla. 2d DCA January 28, 2011)

A joint tenancy with right of survivorship (JTWROS) is a type of concurrent estate in which co-owners have a right of survivorship, meaning that if one owner dies, that owner’s interest in the property will pass to the surviving owner or owners by operation of law, and avoiding probate. The deceased owner’s interest in the property simply evaporates and cannot be inherited by his or her heirs.

Back in 1984 the 2d DCA ruled in Ostyn v. Olympic, 455 So.2d 1137 (Fla. 2d DCA 1984), that if a person owns homestead property as JTWROS, then at the point of death the decedent’s interest in his homestead property evaporates, leaving nothing for a surviving spouse to assert homestead rights against. This time around the 2d DCA came to the same conclusion with respect to the decedent’s minor children: at the point of death the decedent’s interest in his homestead property evaporated, leaving nothing for the minor children to assert homestead rights against. Here’s how the 2d DCA explained its ruling:

In 1995, Mr. De Rosa and his mother, Harriet S. De Rosa, purchased a home in Largo, Florida. The warranty deed to the house states that Mr. De Rosa and his mother own it as “joint tenants with full right of survivorship and not as tenants in common.” At the time of the conveyance, Mr. De Rosa had two minor children. When he died intestate in 2008, he had no surviving spouse, but he did have two minor children and one adult child.

Harriet S. De Rosa claimed title to the property when her son died. Mr. Marger forcefully argues that the house should have homestead status for the benefit of the children. We conclude that the trial court correctly applied our precedent in Ostyn v. Olympic, 455 So.2d 1137 (Fla. 2d DCA 1984), in holding that the house was not homestead and became the sole property of Harriet S. De Rosa at the instant of her son’s death.


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.” This language 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. Thus, even though Mr. De Rosa had children who were eligible for homestead protection at the time he purchased this property along with his mother, he was free to take the property as a joint tenant with the right of survivorship. In so doing, the property did not become homestead property when he and his mother purchased it. Thus, when Mr. De Rosa died, his interest in the property terminated, and it became the sole property of his mother as the surviving joint tenant without any life estate for the benefit of his children.