Homestead Made Easy
Homestead Made Easy Part I: Understanding the Basics
What the bar of this state needs, in addition to a good nickel cup of coffee and a better public image, is at least one more homestead article. There are those who have argued that, in the absence of a residency requirement for Bar admission, the only thing that keeps some of the out-of-state lawyers who are also admitted to The Florida Bar from doing estate planning for and probating estates of Florida residents is their lack of understanding of homestead. However, very few in-state lawyers have such understanding, and it hasn’t slowed us down yet.
This anthology deals with the homestead cryptogram in two parts. Part I discusses the “basics” of “homestead” as a legal concept. It is limited for this discussion to real property homestead. I will discuss the effect homestead has on the title to real estate as it passes through the process of probate administration and the interrelationship of creditors’ claims, homestead, and probate administration.
Next month’s sequel, Part II of the anthology, “Homestead in the Real World,” is a model “client opinion letter” on the topic, “When is homestead subject to probate?” It advises your (corporate) personal representative client how to deal with the decedent’s homestead under several common fact patterns.
You must begin reading this article by retrieving your copy of Art. X, §4 of the Constitution of the State of Florida and placing it alongside you now. [If you don’t know where to find it, look in vol. 5 of the Florida Statutes 1989, p. A-25 or vol. 26A FSA, pocket part, p. 90.] Sure I could reprint it here for you but too many trees already made the ultimate sacrifice for this article and you ought to know where to find a copy anyway. Go ahead and get it, I’ll wait. …
One other comment before jumping in. If you’re just casually reading your FBJ and skimming the articles, skip this one. Unless you can devote some quiet time to concentrate on this article, stop here. You won’t get anything out of it. Shut off the phone or retire to the thinker’s room where you won’t be disturbed.
The earliest literary commentary on homestead comes from Genesis. “In the beginning. . . the earth was without form, and void; and darkness was upon the face of the deep.” 1:1-1:2. Somewhat later, Pope added his detached observation:
Lo! thy dread empire, Chaos! is restor’d; Light dies before thy uncreating word: Thy hand great Anarch! lets the curtain fall, And universal darkness buries all.
The time has now come for homestead to arise from the mist and darkness of Chaos to the light shed by understanding, as longed for by the bard.
Nay had I the power, I should Pour the sweet milk of concord into hell, Uproar the universal peace, confound All unity on earth.
Now, if you’re still with me, get ready with the sweet milk of concord, we’re headed for hell.
The purpose of this article, beyond creating Order out of Chaos, is to give guidance to lawyers and judges (including appellate judges) who are searching for some logical and practical rules to apply to real-world problems. All that has been written about homestead (including many appellate opinions) is chilling testimony to the need for such Order.
Section 4(a) of Art. X of the Florida Constitution defines the physical limits of homestead real property and also describes its exemption from forced sale. [Refer to your copy.] It is that exemption that either “trickles” down to the successor in title or evaporates. Section 4(b) provides that the exemption “shall inure to the surviving spouse or heirs of the owner.” Section 4(c) provides the limitation on devise.
It is the latter two subsections, (b) [the derived exemption] and (c) [limitation on devise] which impact the probate process. [Reread them now.]
Dealing with homestead in an estate context is best handled by descending through the hierarchy of a decision matrix, in this article known as Kelley’s Paradigm. (See chart at end of article.)
The apogee level (level 1) is the determination whether the real property was the homestead of the decedent.
Real property owned by a decedent may be his or her homestead property (with its inherent exemption from forced sale and limitations on devise). For real property to achieve (or be burdened with) homestead status, it must meet all of the following requisites as of the time of the decedent’s death:
1) The real property was owned by the decedent (a natural person).
2) The decedent was a Florida resident.
3) The property was the residence of the decedent or his family.
4) The property meets the size and contiguity requirements of the constitution.
These four conditions define the decedent’s exemption from forced sale. If the real property would have been exempt during the decedent’s lifetime from forced sale by his creditors under Art. X, §4(a), it was the decedent’s homestead. If it was not the decedent’s homestead, the matrix terminates and further homestead consideration in the estate context may be disregarded.
However, if it was the decedent’s homestead, the two “real world” questions arise:
A) May the decedent’s homestead be devised under Art. X, §4(c), and if so to whom?; and
B) Does the exemption from forced sale inure to anyone under Art. X, §4(b); or, stated inversely, is the property subject to the claims of creditors?
Once answers to the descending hierarchical level questions are firmly in mind, implications regarding probate and descent of title to (the decedent’s) homestead real property become clear(er) and susceptible to mere mortal understanding.
In such an analysis, you must begin with a clear understanding that property’s homestead character dies with the decedent. At the instant following death, the property is no longer “homestead” property. It is not the “estate’s homestead” for many reasons, not the least of which is that the estate is not a natural person. (Neither, of course, is the estate the owner.)
“All homestead property loses forever its character as such when the [owner] dies.. ..” Wilson v. Florida National Bank & Trust Co. at Miami, 64 So. 2d 309, 313 (Fla. 1953). This concept was most recently recognized by the Second District in Smith v. Unkefer, 515 So. 2d 757 (Fla. 2d DCA 1987). “We conclude that the homestead status to which section 733.817(l)(d) refers is that of property while in the possession of the decedent. . . . [T]he statute refers to.. . the homestead of the decedent.” (At page 757.)
Since the real property is no longer “homestead” (that status having terminated with the decedent) and without more, has no continuing exemption from claims of the decedent’s creditors, §4(b) is provided to allow the exemption as it previously existed (when the property was homestead) to inure. Although the property is no longer “homestead,” the exemption from forced sale “bonds” to the title and transfers to the heir or devisee, if the constitutional conditions are met. In the terminology of §4(b), the decedent’s exemption inures “to the surviving spouse or heirs.” The property is no longer homestead, but since the exemption inures, the decedent’s (the estate’s) creditors cannot reach it, as long as those taking the property (or an interest in it) are members of the protected class.
Comparison of “homestead” to another legal status, “marriage,” is useful to conceptual understanding. It is a status voluntarily created during lifetime by meeting certain conditions. It gives to the spouse/homesteader certain lifetime rights. It ends at the instant of death, however, certain rights accrue at death from the ended marriage/homestead in favor of the surviving spouse/heirs. The surviving spouse may subsequently marry/become a homesteader but that marriage/homestead has nothing to do with the prior marriage/ homestead. It is totally independent. Also, it has nothing to do with the survivor’s rights which accrued/inured from the prior marriage/homestead (such as elective share, family allowance, right to preference as personal representative/exemption from forced sale by decedent’s creditors). Following the death, we are no longer concerned with the ended marriage/ homestead, but only with the rights which flow from it.
If we get rid of the “excess baggage” of the traditional question,’ ‘What happens to the homestead?” it makes this problem area easier to understand. Nothing happens to the homestead except that it no longer exists. The questions are actually: “What happens to the exemption from forced sale?” and “Can the real property that previously constituted the decedent’s homestead be devised, and if so to whom?” The paradigm branches.
As we know, title to real property typically passes at the instant of death. F.S. §732.514. Jones v. Federal Farm Mortg. Corporation, 132 Fla. 807, 182 So. 226 (Fla. 1938). The property may become the “homestead” of the person to whom title passes, but it is not then the decedent’s homestead. Wilson v. Florida National Bank & Trust Co. at Miami, 64 So. 2d 309 (Fla. 1953), and Smith v. Unkefer, 515 So. 2d 757 (Fla. 2d DCA 1987). For example, if it is assumed that the decedent was survived by a spouse and no lineal descendants, the spouse becomes the fee simple title owner either by devise under the will (F.S. §732.4015) or if not devised, under §732.102(1) as the sole intestate heir ( see Kelley’s Paradigm, level 3). If the widow, in this instance, is a resident of Florida and resides on the property, it then becomes her homestead, and exempt from her creditors. It is also exempt from the decedent’s creditors, because the exemption he had, inured to her.
Now, with a firm understanding of the basic concept that the “homestead” status ^ends with death and the concept of the exemption from forced sale passing on (under some circumstances) with the title, it is then possible to focus on the two important questions relating to the property and its title.
Restated, the two application questions relating to homestead and the probate process are: Whether the real property that used to be homestead during the decedent’s lifetime is subject to devise, and whether the exemption from forced sale (by the decedent’s creditors) of this real estate continues. If the answer to the first question is “no,” the answer to the second question is always “yes.”
Once the (decedent’s) homestead real property either descends by intestacy or is devised, it may then become the “homestead” of that heir or beneficiary and may become exempt from forced sale under process of court by virtue of a judgment against the receiving heir or beneficiary. This is the heir’s or beneficiary’s homestead (exemption from forced sale and limitation on devise), not the decedent’s. This new homestead is not relevant to the present probate proceeding.
The following example may clarify the distinction. Assume the decedent had a judgment held by creditor A pending against her at the time of her death. Also assume the decedent owned real property which was her homestead, but was not devised, and she was survived by a husband but not by lineal descendants. The husband also has a different judgment held by creditor B against him. The decedent’s homestead real property in this instance descends in fee simple to her surviving spouse. The decedent’s creditor (A) may not reach the property and require forced sale under court process because Art. X, §4(b) provides that the decedent’s exemption (from forced sale by her judgment creditor, (A)) inures to the surviving spouse. The status of the property as the decedent’s homestead has terminated, but the exemption from forced sale by the decedent’s creditors has inured to the surviving spouse. The decedent’s creditor (A) has no recourse against the property but must file as a general creditor in the estate. If we assume that the surviving spouse meets all of the constitutional requirements for homestead, the p’operty he has inherited from his deceased spouse now becomes his personal homestead, and his separate judgment creditor (B) may not require forced sale of the property to satisfy his debt. The decedent’s homestead status does not protect this property against her husband’s creditor (B), only against her creditor (A). If the surviving husband is not a resident of Florida or does not reside on the property, his creditor (B) may levy on the property and require its sale even though A may not. The surviving spouse’s judgment creditor and homestead status has no relevancy to the decedent’s probate proceeding or the decedent’s judgment creditor (A).
Another example may help. Lee, who was not survived by a spouse or minor child, devised his homestead real property to his “good friend, Bessie.” Lee’s estate had sufficient assets to satisfy his creditors, but, Bessie had a judgment against her. Bessie, who was a resident of Florida, and who had resided with Lee on the property, continued to reside on the property. Bessie’s judgment creditor may not levy on the property, not because it was Lee’s homestead but because it has become Bessie’s. However, if Lee’s estate was not solvent, Bessie would have to pay off the creditors of that estate in order to keep the property, but she would not have to pay off her judgment creditor. Lee’s exemption did not inure to Bessie because she was not a member of the class of persons defined by the constitution to which the exemption inures, but the property became Bessie’s homestead, which raised the exemption shield regarding her own creditors. See State, Department of Health and Rehabilitative Services v. Trammell, 508 So. 2d 422 (Fla. 1st DCA 1987).
Focusing instead on the homestead status as the decedent had it and how the property may thereafter be subject to the claims of creditors or may be devised is the concern of the probate lawyer and the subject of the remainder of this article.
The decedent’s homestead real property on which the exemption has inured must be indicated as such on the estate inventory. FPR 5.340(a). The requirement that this real property be specially identified on the inventory is imposed to allow property which may be exempt from creditors’ claims, or which may be subject to restrictions on devise, to be readily identified by those who may be interested in either of those matters.
(The decedent’s) homestead status is not required to be determined by the court. Reed v. Fain, 145 So. 2d 858 (Fla. 1962). However, a determination of (the decedent’s) homestead status (and whether the property is subject to the claims of creditors or a limitation on devise) is recommended and should be made as soon as possible after commencement of the probate proceeding. This will produce an answer to the two questions raised above: can the property be devised (and if so to whom) and is it exempt from the claims of creditors? A judicial determination provides notice to third parties who may acquire (or wish to acquire) an interest in the property and determines rights of creditors relating to the property. It also manifests the chain of title for record title purposes. An order determining the property to be (the decedent’s) homestead relieves the personal representative (PR hereafter) of any duties regarding the property if it is exempt from creditors’ claims and not subject to devise. Since the inventory is confidential, there is nothing in the public record except the order to manifest a determination of the property’s exempt status and the manner in which the title passed.
If read literally, the admonition in F.S. §§733.607 and 733.608 against dealing with “homestead” would leave the creditor with no clear answer as to how to enforce his claim against nonexempt “homestead.” The statutory references in the Florida Probate Code ( e.g., F.S. §§733.607, 733.608) to “homestead” are properly read as “[the decedent’s] homestead [to which the constitutional exemption of section 4(b) applies].” And the sentence in F.S. §733.817(l)(d) (although clear in its reference to “exempt homesteads”) also must be read with interpretation as “Real property homesteads [of decedents] that are exempt from execution by law shall be exempt from apportionment of taxes.” This is properly interpreted to mean that the PR is entitled to possession of decedent’s homestead on which the exemption does not inure and that same homestead is not exempted by the statute from contribution for estate taxes. Part II of this article (next month) discusses the question of when the decedent’s homestead may be a probate asset.
Kelley’s Paradigm also supplies the answer to the question, “May the decedent’s homestead be devised, and if so, to whom?”
Nothing less than the fee simple of the owner’s interest in the homestead may be devised to the surviving spouse. In re Estate of Finch, 401 So. 2d 1308 (Fla. 1981). However, the owner’s interest in the homestead need not be 100 percent of the fee simple; for example, an undivided interest as tenant in common would qualify if the other conditions were met.
If the decedent is survived:
• by a spouse and minor child, (Kelley’s Paradigm, level 2) ; or
• by a spouse and adult lineal descendant^) (and the property is not devised to the spouse) (Kelley’s Paradigm, level 3) ; the spouse takes a life estate in the property, with a vested remainder in the lineal descendants in being at the time of the decedent’s death.
If the decedent is survived:
• by a spouse and no lineal descendant (Kelley’s Paradigm, level 3), the real property may be devised only to the spouse, and if not so devised, descends to the spouse in fee simple.
If the decedent is survived:
• by lineal descendants), at least one of whom is a minor (but not by a spouse) (Kelley’s Paradigm, level 2), the homestead may not be devised (even in trust for the lineal descendants or the minor) and descends to the lineal descendant^) in being at the time of decedent’s death, including the minor, in fee simple.
If the decedent is survived:
• by neither a spouse nor minor child, the homestead may be freely devised, without limitation, in fee or lesser interests, even to the exclusion of the lineal descendants.
If the property may not be devised, it cannot be devised in a trust for the benefit of a person who would otherwise receive the title to the property by operation of law. For example, if the decedent is survived only by a spouse (and the property may be devised, but only to the spouse), it may not be devised to a credit shelter trust, QTIP trust, or even a general power marital trust for the spouse.
The next question which arises is the effect of a valid nuptial agreement on homestead rights or interests. Three districts have ruled on this issue, the Second, Third and Fifth, and their rulings are in accord that the existence of such agreement is the “functional equivalent” of the nonowner spouse having predeceased the owner, thus permitting the homestead to be freely devised, if there is no minor child. Hartwell v. Blasingame, 564 So. 2d 543 (Fla. 2d DCA 1990); City National Bank of Florida v. Tescher, 557 So. 2d 615 (Fla. 3d DCA 1990); Estate of Wadsworth, 564 So. 2d 634 (Fla. 5th DCA 1990).
Homestead real property owned as tenants by the entirety will continue to qualify as exempt from forced sale by the decedent’s creditors. The decedent’s exemption does not inure to the surviving spouse under Art. X, §4(b) of the Florida Constitution; however, the property is exempt because the decedent’s interest in it simply terminated at death. Bendl v. Bendl, 246 So. 2d 574 (Fla. 3d DCA 1971). The spouse’s exemption, which was hers to begin with, continues. The property does not have the limitation on devise provided by statute, but becomes the sole property of the surviving spouse by operation of law even if there is a minor child. F.S. §732.401(2).
The size limitation on homestead property is determined by whether the property was originally within a municipality at the time the homestead status attached. Art. X, §4(a) of the Florida Constitution provides that a maximum of 160 acres of contiguous land and improvements on it may be set aside as homestead, even if it has been subsequently included in a municipality without the owner’s consent after the homestead status attached. Otherwise, a maximum of one-half acre of contiguous land limited to the residence of the owner or his family may be set aside as homestead, if it is located within a municipality.
Since one of the requirements for homestead status is Florida residency, homestead status is not relevant in a Florida ancillary administration. However, if the decedent was a resident of Florida and the property was homestead, and if the exemption inures, it may inure to one who is not a resident of Florida, as long as that person is the decedent’s “spouse or heir.”
Effective January 8, 1985, by amendment of Art. X, §4, of the Florida Constitution, the owner of the property is no longer required to be the “head of a household.” The owner is now only required to be a “natural person.” The concept of abandonment is no longer applicable. In re Estate of Scholtz, 543 So. 2d 219 (Fla. 1989). After January 8, 1985, it is irrelevant that the spouse may not have been residing with the owner at the time of the owner’s death.
As of this writing, one district court of appeal has held that a devise to a testate “beneficiary” does not carry with it the same continuing exemption as descent to “the surviving spouse or the heirs” under Art. X, §4(b). In re Estate of Hill, 552 So. 2d 1133 (Fla. 3d DCA 1989), dismissed, 564 So. 2d 487. Such a devise, the case holds, even to one who is also an “heir” would destroy the exemption. The case is simply wrong in that holding. The opinion overlooks a fine distinction. The constitutional exemption continues if the title passes to a member of the constitutionally- defined class, the spouse or heirs. The constitution itself neither causes passage of the title to the decedent’s homestead property nor specifies how title must pass, whether by devise, by intestacy, or by statutory descent (under F.S. §732.401(1)). “[T]he homestead provisions of our constitution do not undertake to cast an estate in the exempted properties upon the widow or heirs, or to regulate or establish their rights of property inheritance therein, but that such rights must be ascertained from other sources.. ..” Hinson v. Booth, 39 Fla. 333, 22 So. 687, 692 (Fla. 1897).
Also, the holding in Hill is dicta since the devise was of a “life estate of sole possession” to a stepdaughter, who would not have been an “heir” in any case. The opinion does not specify who received the remainder interest. Since the property was not devised to a person who was the decedent’s heir (a stepdaughter), the exemption from forced sale would have been destroyed in any instance. The opinion suggests “There is a real and substantial difference between an ‘heir’ and a ‘devisee.’ Heirs, under section 731.201(18), Florida Statutes (1987), are those persons who are entitled under the statutes of intestate succession to the property of a decedent.” (At page 1134.) This dicta overlooks the fact that if the decedent is survived by a spouse and minor child, those who take the decedent’s homestead are not “entitled under the statutes of intestate succession [F.S. §§732.102 and 732.103] to the property of a decedent” but rather are entitled under F.S. §732.401(1). The spouse and the lineal descendants in that instance are neither “heirs” nor “beneficiaries” in the technical sense; however, no one would dispute the fact that the constitutional exemption under Art. X, §4(b) inures to them.
The term, heirs, in §4(b) is a definition of a class of persons who may enjoy the continuation of the decedent’s exemptions from forced sale by decedent’s creditors. It is not a limitation on how such qualified persons must receive the title. A “devisee” who is an heir at law (a person designated by F.S. §732.103) will enjoy the exemption. It makes no logical sense in the situation where the decedent is survived only by a spouse and devises the homestead to the spouse, to deny the continuation of the exemption where, if the will had been silent as to the devise and the decedent’s homestead real property had passed to the surviving spouse as intestate property, the exemption would have inured. Actually, the residuary clause of such a will would have to have been drafted to read “I devise all the remainder of my property, except my homestead, to my spouse” in order for it to accomplish the desired result. Hill simply reached the correct result but stated the law incorrectly.
Some further explanation and background is required in support of the last statement. The language granting the inured exemption to an “heir” derives directly and continuously from Art. IX of the Constitution of 1868 (Florida’s first “legal” constitution after the Civil War). That constitutional provision was interpreted to proscribe any devise of the homestead and required that it pass to intestate heirs who were, under the law then extant, the decedent’s children or their descendants. Scull v. Beatty, 27 Fla. 426, 9 So. 4 (1891).
The earliest specific constitutional permission for devise of homestead real property was in Art. 10, §4 of the Constitution of 1885. That section permitted devise if the owner “be without children.” That permission was extended into the next constitution (1968), where it appeared as Art. 10, §4(c), but it was there expanded to the current language regarding limitation on devise, “if the owner is survived by spouse or minor child.” It was not until the constitutional amendment effective January 2, 1973, that the present exception in Art. X, §4(c) (“except the homestead may be devised to the owner’s spouse if there be no minor child”) was added.
It is significant to note that the constitution, although it limits the right to devise homestead real property, does not provide how that property, if not devised, shall descend. Instead the statutes control this and could, for example, be amended to provide that such homestead descends in fee simple to each first cousin. The current statute provides for descent in the same manner as other intestate property, but if the decedent is survived by a spouse and lineal descendants, the surviving spouse takes a life estate with a remainder in “the lineal descendants in being.” F.S. §732.401(1). There was no specific statutory provision for descent of homestead until 1899 and it descended as other intestate property to the decedent’s children or their descendants. Ch. 4730, §1, Laws of Fla. (1899).
The constitution provides the shield of the continuing exemption from forced sale if, in whatever manner, the title descends to the members of the protected class, the “spouse or heirs.”
When the ancestor, while in life, disposes of his effects by will, to take effect on his death, the instant of his death brings to the dispositions of property therein made a consummated effectiveness, as though he had made the same dispositions thereof absolutely during his life by deed. When the ancestor, then, disposes of such property by will, if it is therein given to others than his heirs at law, such heirs, at his death, find themselves in the presence of such a will, with no right of ownership to any property to which the constitutional immunity from debt could attach.
Hinson v. Booth, 39 Fla. 333, 22 So. 687(Fla. 1897).
In the realm of dicta, the Hill dicta is not dicta of first impression. Estate of Murphy, 340 So. 2d 107 (Fla. 1976), was the first impression dicta which addressed the question of whether the “devise” to a “beneficiary” carried with it the exemption provided under Art. X, §4(b) to “heirs.” In that case (a case of a testamentary devise under a residuary clause to a surviving spouse), the court said: “While it is true that homestead property is not chargeable with the decedent’s debts or with costs of administration. . . , the Constitution specifically provides that ‘the homestead may be devised to the owner’s spouse if there be no minor child.’ ” Thus, even where the property was devised to a member of the protected class (the surviving spouse), the exemption from the decedent’s creditors’ claims continued. The quoted portion is dicta since the case did not involve competing interests of a “devisee” and a creditor, but rather a devisee-spouse and a son. However, the Supreme Court dicta presumably should be more persuasive than the Third DCA dicta.
Finally, the only other case found by this author involving devise of a decedent’s homestead to one who would otherwise be an “heir,” where the issue was the priority of a creditor’s claim, is Public Health Trust of Dade County v. Lopez, 531 So. 2d 946 (Fla. 1988). Lopez was a consolidated case with In re Estate of Taylor. As regards Taylor, the opinion is specific that the decedent “died intestate survived by four adult children who lived elsewhere.” (At page 947.) In Lopez, the opinion (as well as the prior DCA opinion) is silent on the question of whether Mrs. Lopez died testate or intestate. In fact she died testate and her will dated March 21, 1985, was admitted to probate by order dated August 20, 1985, in case number 85-6907 (02) of the circuit court of Dade County. In Lopez, the Supreme Court held that the exemption remained intact in the hands of the children (who were devisees). They qualified under the constitutional class limitation as persons who were members of the class called “heirs.”
If the (decedent’s) homestead may be devised under the foregoing rules, it will pass under the residuary clause of the owner’s will if not specifically devised. In re Estate of Murphy, 340 So. 2d 107 (Fla. 1976).
Now that you’re equipped with the necessary skills to understand the issues of “homestead,” application of these skills to the real world of advising a fiduciary client regarding such matters is the next concern. Next month’s sequel is a model opinion letter to a corporate fiduciary client telling the fiduciary what is required to be done with regard to creditors, devisees, and the probate court if the decedent died owning properly which was his homestead.
Rohan Kelley is a shareholder in Rohan Kelley, PA., in Ft. Lauderdale. He is board certified in estate planning and probate and is past chairman and present member of tlie Probate and Estate Planning Certification Committee of The Florida Bar. He is chancellor of the Academy of Probate and Trust Litigation Attorneys and the author of The Florida Bar Probate System; Ch. 20 ”Probate Litigation” in Basic Practice Under Florida Probate Code. Mr. Kelley’s practice is limited to wills, trusts and estates, and estate and trust litigation.
This column is submitted on behalf of the Real Property, Probate and Trust Law Section, Roger O. Isphording, chairman, and James P. McDonald and Julie Ann Williamson, editors.
This article is adapted from Law Note 19, Florida Bar Probate System (2d ed. 1990), available from CLE Publications (see ad accompanying this article).
Part 2 of Mr. Kelley’s article will be published in the April 1991 issue.