The long-standing concept of "abandonment" of the homestead did not survive the 1985 amendments to the Florida Constitution.

AuthorCuello, Alex
PositionElder Law

In 1984, the voters of this state approved a change to the language in art. X, [section]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, [section]4, of the Florida Constitution.

Art. X, [section]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, [section]4 does not define "homestead" for purposes of descent and distribution. (4) However "[a]rticle X, [section]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)

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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. [section]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, [section]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...

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