The Longstanding Concept of “Abandonment” of the Homestead Did Not Survive the 1985 Amendments to the Florida Constitution
In 1984, the voters of this state approved a change to the language in art. X, §4 of the Florida Constitution expanding the class of individuals afforded the protections and restrictions affixed to homestead real property. Prior to the 1985 constitutional amendment, homestead status was limited to real property owned “by the head of a family.”1 The amendment approved by Florida voters changed this language to “a natural person.”2 The reason for the change was to expand the class of persons afforded the homestead status protections to individuals who are single or have no dependents. The effect of the change was to eviscerate the concept of “abandonment” for the benefit of persons availing themselves under the constitutional homestead protections. This article explores the resulting effect the 1985 amendment change in language had on section (c) of art. X, §4, of the Florida Constitution.
Art. X, §4 of the Florida Constitution affords homestead protection in three distinct ways. First, under section (a) there is an exemption from taxes; 2) section (b) affords protection from forced sale by creditors; and 3) section (c) has restriction on alienation and devise.3 Art. X, §4 does not define “homestead” for purposes of descent and distribution.4 However “[a]rticle X, §4, must be read in its entirety.”5 In defining “homestead” for purposes of descent and distribution, the courts have rejected the argument that the term homestead should be given a different definition under subparagraph (c) from that under subparagraphs (a) and (b).6 Although for descent and distribution there is a distinction in the definition of “homestead” for purposes of the tax exemption application and co-op property.7
Subparagraph (c) states, in part, that “[t]he homestead shall not be subject to devise if the owner is survived by spouse or minor child.… The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse.”8 “[I]f the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes.”9 “In lieu of a life estate under subsection (1), the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes.”10 The term “homestead” as used in F.S. §732.4015 is the same as the term “homestead” as used in the Florida Constitution.11
“As a matter of public policy, the purpose of the homestead exemption is to promote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune and the demands of creditors who have given credit under such law.”12 Before the 1985 amendment to art. X, §4, the mere fact of being a surviving spouse did not entitle one to homestead rights in the decedent’s estate.13 The constitution afforded homestead status to “the head of a family.” In defining “the head of a family” the Florida Supreme Court set out a test that required a showing of either “(1) a legal duty to support which arises out of a family relationship, or (2) continuing communal living by at least two individuals under such circumstances that one is regarded as in charge.”14 In Barlow v. Barlow, 23 So. 2d 723 (Fla. 1945), the decedent was survived by a spouse and children from a former marriage. Prior to her husband’s death, Mrs. Barlow took her belongings and moved out of the home. She reportedly told friends that she was not returning. Mrs. Barlow relocated some 300 miles away where she secured employment and sought legal counsel for a divorce. Approximately two weeks later she received notice that her husband’s health had become critical and she returned to the home, shortly after which Mr. Barlow died. The decedent’s children filed suit to enjoin the widow from asserting a claim to the homestead property. The Florida Supreme Court held that the wife’s action amounted to abandonment resulting in her waiver of any claim to homestead protection against alienation or devise.15
The change in the constitutional language from “a head of household” to “a natural person” expanded the class of persons afforded constitutional homestead protections to include individuals who are single and those with no dependents. Furthermore, as a consequence of the amendment to the constitution the concept of “abandonment,” as applied in Barlow, did not survive.16 In the case In re Estate of Boyd, 519 So. 2d 692 (Fla. 4th DCA 1988), the property owner was survived by a spouse, from whom he was living apart at the time of death.17 The Fourth District Court of Appeal affirmed the trial court, holding that “[t]he 1985 amendments to the [Florida] Constitution conferred homestead status on any real property owned and occupied by a ‘natural person’ and eliminated the previous requirement that the property be owned by a ‘head of household.’”18 Subsequently, in the case In re Estate of Scholtz, 543 So. 2d 219 (Fla. 1989), the Florida Supreme Court accepted certification from the Fourth District Court of Appeal on the question of whether the concept of “abandonment” was still viable in view of the 1985 amendment of the homestead provision of the Florida Constitution.19 In the case of In re Estate of Scholtz, the husband purchased a residential property after the couple had separated. The property was solely titled in the husband’s name and he lived there, without his wife, until he moved to a nursing home shortly before his death. In holding that the husband’s property was “homestead,” subject to the constitutional restriction on alienation and devise, the Florida Supreme Court held that the 1985 amendment to the constitution means that there was no longer a need for the family to be residing together in the household for the homestead protection to attach.
Notwithstanding the elimination of the concept of “abandonment,” art. X, §4 continues to provide that the homestead exemption “shall be limited to the residence of the owner or the owner’s family.”20 Under the probate code, “residence” is defined as “a person’s place of dwelling.”21 For purposes of property taxes “[i]ntention to establish a permanent residence in this state is a factual determination to be made, in the first instance, by the property appraiser.”22 Although no one factor is determinative, the property appraiser may consider factors as to the intent of a person claiming homestead, including, but not limited to, proof of voter registration in this state with the voter information card address of the applicant, a valid Florida driver’s license, or issuance of a Florida license tag on any motor vehicle owned by the applicant.23 A Florida driver’s license shall bear licensee’s residential address.24 In Florida, the registration of an owner of a motor vehicle “shall include the street address of the owner’s permanent residence….”25 A Florida voter’s registration card must contain the address of legal residence.26 “In the case of a change of … address of legal residence…, the supervisor shall issue the voter a new voter information card.”27
F.S. §196, “Exemption,” implements art. VII, Finance and Taxes, of the Florida Constitution.28 The homestead provisions in articles VII and X are separate and distinct, and the principles relating to one do not necessarily govern the other.29 However, the Fourth District Court of Appeal has held that if the homestead exemption is not lost under art. X it should likewise not be lost under art. VII.30 “The fact that the property is homestead for ad valorem tax exemption is evidence as to the issue of a claimant’s intent that the property is also homestead.”31
Even before the 1985 amendment to the homestead exemption, the courts consistently held that the constitutional protections afforded under art. X, §4 are to be liberally construed for the benefit of protecting the family home.32 This is a fundamental principle that must guide a court in determining whether homestead status has been acquired or whether it has been abandoned.33
Homestead status is established when a natural person intends to make a property his or her homestead and actually maintains the property as the principal residence.34 Whether someone intended to abandon their homestead interest and waive the protections afforded by the Florida Constitution is a question of law.35 The presumption is against abandonment.36 In determining intent, “continuous uninterrupted physical presence [at the property] is not required to create a homestead.”37 “[A] temporary absence of the head of a family in search of health, pleasure, or for business reasons will not deprive the homestead of its character and status as such unless there was a design of permanent abandonment.”38 Homestead status is not abandoned due to the property owner’s admission to a hospital.39 Not even a one-year absence from the property during a divorce to cope with emotional disturbance will constitute abandonment of homestead.40 Regardless of the reason for the absence, when the owner owns no other property, his or her temporary absence, during which time the homestead is rented, will not deprive the owner of homestead protection when he or she has in good faith made the property his or her permanent home.41 “A homestead is abandoned by taking up a permanent abode at a distant place.”42
Whether the homestead has been abandoned to deprive it of its constitutional exemptions is determined by consideration of all the pertinent facts and circumstance on a case-by-case basis.43 A property owner and spouse living in a farmhouse in another county during the growing season harvesting crops does not constitute abandonment.44 In the case of U.S. Fidelity & Guaranty Co. v. Marshall, 4 So. 2d 337 (Fla. 1941), the husband and wife established their home in Orange County where the husband was registered to vote and once ran for mayor. During the growing season, they would stay at their farmhouse in Jefferson County, directing the growth and cultivation of crops. Mr. Marshall would rent a post office box in Jefferson County to receive his mail. He would make frequent weekend visits to the Orlando home returning to the farm on Sunday or Monday. In holding that judgment creditors could not lien the Orlando home, the court found that the facts did not demonstrate any intention to permanently abandon the Orlando homestead.45
Even an individual who only possesses a beneficial interest, such as a life tenant, is entitled to homestead protection from forced sale.46 “The restriction on alienation and devise of the homestead property found in the constitution, along with the statutory scheme vesting a life estate in the surviving spouse, is a valuable right of the surviving spouse.”47 When only one spouse’s name appears on the title to the homestead, that spouse cannot “abandon” the rights of the surviving spouse through alienation or devise.48 Both spouses have to join in conveying the homestead owned by one spouse.49
“In order to support a claim of abandonment it must be shown that both the owner and the owner’s family abandoned the property.”50 A married couple owning a home they rent while having extended visits with the husband’s mother at her winter home so that she is not alone there does not constitute abandonment of the couple’s homestead.51 In Poppell v. Padrick, 117 So. 2d 435 (Fla. 2d DCA 1959), the court relied, in part, on the fact that the husband was a registered voter in a precinct in which his home was located to satisfy the statutory requirement for “resident” in order to be eligible for homestead tax emption. However, when a husband deeds the homestead to his wife and takes up permanent residence elsewhere, taken together, abandonment has been found.52
Abandonment must be demonstrated by clear and convincing evidence.53 Homestead status ceases when the facts demonstrate the property owner has taken up permanent residence elsewhere.54 When the property owner is absent, allows his or her Florida driver’s license to expire, registers to vote and secures a driver’s license in another state, there is abandonment.55
Contracting to sell does not terminate the homestead constitutional protections. “A contract for sale, however, does not as a matter of law end homestead status.”56 Even if the homestead property is sold, homestead protection extends to the sales proceeds if it can be shown by a preponderance of the evidence that they are going to be reinvested in another homestead within a reasonable time; and the proceeds are not commingled with other funds.57 And if the owner dies after contracting to sell but before the closing of the transaction, homestead protection inures to the sales proceeds for the benefit of the heirs.58
“The homestead protection has never been based on principles of equity.”59 T he restrictions on the alienation and devise of homestead property found in art. X, §4(c) of the Florida Constitution serve to promote a public policy of stability and welfare in securing the home beyond the reach of financial misfortune.60 Florida voters fortified this policy in approving the 1985 amended language to the constitution from “the head of a family” to “a natural person.” The amendment expands the class of persons afforded constitutional homestead protections to include individuals who are single and those with no dependents. Moreover, the Florida Supreme Court held that as a result of the changes, the concept of “abandonment,” as applied in Barlow, did not survive the 1985 amendments to Fla. Const. art. X, §4.61
1 Fla. Const. art. 10, §4(a)(1) (1984).
2 Fla. Const. art. 10, §4(a)(1) (1985).
3 Snyder v. Davis, 699 So. 2d 999, 1001-1002 (Fla. 1997).
4 Holden v. Estate of Gardner, 404 So. 2d 1169, 1170-1171 (Fla. 1st DCA 1981), aff’d, 420 So. 2d 1082 (Fla. 1982).
5 In re Estate of Johan A. Scholtz, 543 So. 2d 219, 221 (Fla. 1989) (citing Holden v. Estate of Gardner, 420 So. 2d 1082 (Fla. 1982); Crain v. Putnam, 687 So. 2d 1325 (Fla. 4th DCA 1997).
6 In re Estate of Scholtz, 543 So. 2d 219, 221 (Fla. 1989).
7 See Phillips v. Hirshon, 958 So. 2d 425 (Fla. 3d DCA 2007).
8 Fla. Const. art. X, §4(2)(c).
9 Fla. Stat. §732.401(1) (2010).
10 Fla. Stat. §732.401(2) (2010).
11 See Holden v. Estate of Gardner, 420 So. 2d 1082 (Fla. 1982).
12 Public Health Trust of Dade Cnty v. Lopez, 531 So. 2d 946, 948 (Fla. 1988).
13 Barlow v. Barlow, 23 So. 2d 723, 724 (Fla. 1945).
14 Holden, 420 So. 2d at 1083.
15 Barlow, 23 So. 2d at 723.
16 In re Estate of Boyd, 519 So. 2d 692 (Fla. 4th DCA 1988).
17 Id. at 693.
18 Id. at 692.
19 Scholtz, 548 So. 2d at 221.
20 Fla. Const. art. 10, §4(a)(1).
21 Fla. Stat. §731.201(33) (2010).
22 Fla. Stat. §196.015 (2010).
23 Fla. Stat. §196.015 (2010).
24 Fla. Stat. §322.14(1)(a) (2012).
25 Fla. Stat. §320.02(2)(a) (2011).
26 Fla. Stat. §97.071(1)(f) (2011).
27 Fla. Stat. §§97.071(1)(f) and 97.071(3) (2011).
28 Crain v. Putnam, 687 So. 2d 1325, 1326 (Fla. 4th DCA 1997).
29 Id. at 1326.
31 Beltran v. Kalb, 63 So. 3d 783, 786 (Fla. 3d DCA 2011).
32 Taylor v. Maness, 941 So. 2d 559, 562 (Fla. 3d DCA 2006).
33 Marsch v. Hartley, 109 So. 2d 34, 37 (Fla. 1959).
34 Beltran, 63 So . 3d at 786.
35 Taylor, 941 So. 2d at 562.
36 Burdick v. Burdick, 399 So. 2d 410, 413 (Fla. 3d DCA 1981) (J. Nesbitt, concurring, citing Poppell v. Padrick, 117 So. 2d 435 (Fla. 2d DCA 1959)).
37 Burdick, 399 So. 2d at 412.
38 Lanier v. Lanier, 116 So. 867, 868 (Fla. 1928).
39 In re Estate of Milisi, 440 So. 2d 584, 585 (Fla. 4th DCA 1983).
40 See Saint-Gaudens v. Bull, 74 So. 2d 693 (Fla. 1954).
41 City of Jacksonville v. Bailey, 30 So. 2d 529, 530 (Fla. 1947).
42 Lanier, 116 So. at 868.
43 Nelson v. Hailin, 104 So. 589 (Fla. 1925).
44 See U.S. Fidelity & Guarantee Co. v. Marshall, 4 So. 2d 337 (Fla. 1941).
46 Taylor, 941 So. 2d at 563.
47 Estate of Newman v. Humphreys, 413 So. 2d 140, 142 (Fla. 5th DCA 1982).
49 Taylor, 941 So. 2d at 563 .
50 Nationwide Fin. Corp. v. Thompson, 400 So. 2d 559, 561 (Fla. 1st DCA 1981).
51 Poppell v. Padrick, 117 So. 2d 435 (Fla. 2d DCA 1959).
52 Miller v. West Palm Beach Atlantic Nat’l. Bank, 194 So. 2d 230 (Fla. 1940).
53 Burdick, 399 So. 2d at 412 (J. Nesbitt, concurring, citing Banks v. Banks, 98 So. 2d 337, 339 (Fla. 1957)).
54 U.S. of America v. Boyette, 412 So. 2d 1250, 1251 (Fla. 1st DCA 1982).
56 Law v. Law, 738 So. 2d 522, 524 (Fla. 4th DCA 1999).
57 Orange Brevard Plumbing and Heating Co. v. La Croix, 137 So. 2d 201 (Fla. 1962) .
58 In re Est. of Hamel, 821 So. 1276 (Fla. 2d DCA 2002).
59 Public Health Trust of Dade County, 531 So. 2d 946 (Fla. 1988).
61 Scholtz, 543 So. 2d at 221.
Alex Cuello is the principal shareholder of the Law Office of Alex Cuello, P.A., in Miami. His practice focuses on elder law with an emphasis in the areas of probate administration and litigation, guardianship administration and litigation, estate planning, Medicaid planning, and Social Security disability claims. He is board certified as a specialist in elder law, and presently serves on the executive council of the Elder Law Section.
This column is submitted on behalf of the Elder Law Section, Twyla Lawrene Sketchley, chair, and Stephanie M. Villavicencio, chair.