Restrictions on the devise of homestead should be repealed.

• Author: McMullen, Linda

Homestead is a concept created by statute and the Florida Constitution that was unknown in common law. It is defined as real property equal to 160 acres of contiguous land outside a municipality or one-half acre of contiguous land inside a municipality, with improvements thereon, and without regard for value, that the owner and or the owner's family uses as a residence. Homestead property is exempt from forced sale and no judgment, decree, or execution is a lien on the homestead, except taxes, assessments, and obligations under certain contracts. These exemptions inure to the surviving spouse or heirs of the owner. A homestead cannot be devised if the owner is survived by a spouse or minor child, except the homestead may be devised to the owner's spouse if there is no minor child. Fla. Const. Art. X, [sections] 4(c); F.S. [sections] 732.4015. If the homestead is not devised as permitted by law and the Constitution, it descends in the manner as intestate property. F.S. [sections] 732.401(1). However, if a decedent is survived by a spouse and lineal descendants, the surviving spouse takes a life estate in the homestead with a vested remainder to the lineal descendants in being at the time of decedent's death. Id.

The original purpose of the constitutional homestead was to protect the rights of a surviving spouse or minor child by precluding them from losing their home and means of livelihood. See Bigelow v. Dunphe, 143 Fla. 603, 197 So. 328 (1940); Hartwell v. Blasingame, 584 So. 2d 6 (Fla. 1991); City National Bank of Fla. v. Tescher, 578 So. 2d 701 (Fla. 1991) (restraint on the right to devise the homestead should not be extended beyond what is expressly allowed in the Constitution). Restrictions on the devise of the homestead first appeared in the 1885 Florida Constitution, which provided that if the "holder" of the exemption "be without children," he could dispose of his homestead by will in a manner provided by law. Fla. Const. Art. X, [sections] 3 (1885). Revisions adopted in 1968 provided that the homestead would not be subject to devise if the owner is survived by a spouse or minor child. Fla. Const. Art. X, [sections] 4(c).

The late Judge Gavin Letts of the Fourth District Court of Appeal referred to homestead litigation as the "continuing saga" and called the constitutional homestead a "legal chameleon" because of the endless efforts to understand its application and shape the archaic concept to fit modern life and times.

Litigation in this "continuing saga" has increased substantially since 1984, when the legislature passed House Joint Resolution 40. HJR 40 recommended what appeared to be a simple amendment to Art. X. The proposed amendment was approved by the electorate and became effective January 8, 1985. The ballot summary upon which the people voted said:

EXEMPTION OF HOMESTEAD AND PERSONAL PROPERTY FROM FORCED SALE.--Provides that the exemption of a homestead and of personal property to the value of $1,000 from forced sale and certain liens shall extend to any natural person, not just head of a family.

The actual amendment simply changed the term "head of a family" to "natural person" at the end of subsection (a) preceding subparagraph (1)...