The chameleon is too big (and cannot be subdivided).

AuthorHenry, Thornton B.

What happens when a decedent's homestead exceeds the constitutional size restrictions contained in Fla. Const. art. X, [section]4, and the parcel cannot be subdivided? (1) The issue is not an esoteric question in the context of probate administration. Admittedly, in estates in which there are significant assets and the beneficiaries are in agreement, the issue may be present, but not pertinent. However, in estates that experience significant liquidity problems, elective share issues, creditor problems, or friction between the beneficiaries, the issue may need to be squarely addressed. The reason is that "protected homestead" is not an asset of the estate. (2) It is not available for the payment of devises, administrative expenses, or creditor claims. (3) As such, in some estates it will be important for the personal representative to determine what portion of the homestead property is the "nonprotected homestead" and what is the "protected homestead."

Interestingly, the issue has not been clearly addressed by the Florida courts, and the cases that seem to suggest an answer are, as will be shown below, largely irrelevant to the analysis and, worse, if woodenly applied, would produce a result that is arguably both contrary to Florida homestead law and inequitable.

Residence Anchors the Analysis

In order to frame the issue properly, it is best to start with what is clear. If the homestead exceeds the constitutional size restriction and it can be subdivided, then Florida law provides that the recipient of the protected homestead is entitled to the residence plus the size-restricted portion of land that is contiguous to the residence. In Fort v. Rigdon, 100 Fla. 398 (Fla. 1930), the land in question was outside a municipality

and comprised one contiguous body of 560 acres, thereby exceeding the constitution's 160-acre size limitation. The petitioners sought to have the trial court declare the most valuable portion of the property to be homestead, rather than the portion on which the residence was located. The appointed magistrate refused and, instead, designated 80 acres on which the residence was located and an additional contiguous 80 acres. The Supreme Court affirmed, citing Oliver v. Snowden, 18 Fla. 823 (Fla. 1882), which held that "the extent of homestead is measured by quantity and not value." "Quantity" is then measured by the location of the residence. Rigdon, therefore, stands for the proposition that residence anchors the analysis as to what portion of land is considered homestead when the land exceeds the constitutional size restrictions.

This being the case, this author can see no reason why the result in Rigdon should change depending on whether the lot can be subdivided. The issue can best be described using the diagrams below.

In Diagram 1, per Rigdon, the result is clear. The recipient of the protected homestead receives the residence and the size-restricted portion of the property with the estate receiving the "nonprotected" portion. However, in Diagram 2, because of the location of the residence, the lot cannot be subdivided.

Overcoming Obstacles: In Re Kellogg and In Re: Quraeshi

Two cases seem to imply that when a lot cannot be subdivided, the court should simply allocate to the recipient of the protected homestead that portion that represents the proportionate amount of the protected homestead (proportionate methodology). For example, if a lot within a municipality is one and a half acres, then the recipient...

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