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Single Spouse Ownership and the Ability to Convey Homestead Property
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Single Spouse Ownership and the Ability to Convey Homestead Property

June 10, 2011 Real Estate Development, Sales and Leasing Industry Legal Blog

Reading Time: 5 minutes


Single Spouse Ownership and the Ability to Convey Homestead Property

Many people believe that by virtue of holding ownership of a property, the owner may convey the property as they wish.  This is not always the case when an individual is married.  A home may be owned by only one spouse.  The owner of the home may choose to sell or convey the marital home to another individual, without the consent of his or her spouse.  In situations such as these, the spouse who failed to give consent, or the “non-joined” spouse, may have a claim invalidating the conveyance through claiming the homestead exemption.

Homestead protections protect the family home against financial reversals.  Jones v. Carpenter, 106 So. 127, 130 (1925).  In order to establish whether a homestead exists, the claimant must show 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.”  Holden v. Estate of Gardner, 420 So. 2d 1082, 1083 (Fla. 1982).  The question whether an individual is the head of the family is a question to be resolved on the facts of the case.  Id.

In addition to the two ways an individual can establish the existence of a homestead, the individual must also show an intent to reside on the property, an intent to return to the property when absent, and actual residency.  See Hillsborough Inv. Co. v. Wilcox 13 So. 2d 448 (1943); In re Estate of Van Meter, 214 So. 2d 639 (Fla. 2d DCA 1968).  In In re Estate of Van Meter, the decedent and his widow had been separated for eleven years prior to the date of his death.  Upon his death, the widow claimed the decedent’s property was her homestead.  214 So. 2d at 640-641.  The court ruled against her finding that she was not entitled to any benefits from the property because there had been no family relationship and no actual residence by her on the property at the time of the decedent’s death.  Id.

If one spouse holds sole title to the property throughout the marriage, and during the marriage the spouse holding title conveys the homestead to a third party, the non-joined spouse can argue that the conveyance is invalid.  Fla. Const. Art. X, § 4(c) (2011) provides:

The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no 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.

(Emphasis added).  This provision supports the proposition that regardless of the ownership status of the property, if the property qualifies for homestead status, the homestead may not be alienated without joint conveyance by both spouses.  Taylor, 735 So. 2d at 563.

The latter half of Art. X, § 4(c) specifically provides “[t]the owner of homestead real estate … if married, may by deed transfer the title to an estate by the entirety with the spouse.”  This is a unique exception to the joinder rule previously mentioned because when the conveyance pertains to transferring the property between the spouses as tenants by the entireties, joint conveyance is not necessary.  Thus, the spouse holding sole title may convey the property to himself and his spouse without violating the joinder rule.

If the spouse chooses to convey the property to himself and his spouse, he can continue to claim the property as a homestead.  Denham v. Sexton, et al., 48 So. 2d 416, 417 (1950).  An intact marriage can have only one homestead.  Law v. Law, 735 So. 2d 522, 524 (Fla. 4th DCA 1999).  It is not necessary for a married couple to claim a homestead exemption for tax purposes to thereafter claim homestead protections, and the fact that the exemption had not been claimed is not evidence that the property is not in fact homestead property.  Taylor v. Maness, 941 So. 2d 559 (Fla. 3d DCA 2006) (citing S. Walls, Inc. v. Stilwell Corp., 810 So. 2d 566, 569 (Fla. 5th DCA 2002); Pierrepont v. Humphreys, 413 So. 2d 140, 143 (Fla. 5th DCA 1982)).  Thus, the existence of a homestead exemption in any manner is not dependent on claiming or failing to claim entitlement to an exemption when persons in good faith permanently reside on real property in which they have an ownership interest.  Pierrepont, 413 So. 2d at 143.

Lastly, upon one spouse’s death, the surviving spouse holds sole title to the property to the exclusion of the heirs of the deceased spouse.  Knapp v. Fredricksen, 148 Fla. 311, 314 (1941).  Therefore, if the property is held as tenants by the entireties upon the death of one spouse, the decedent’s interest is extinguished upon his death, and his full interest is immediately converted into a fee simple belonging to the surviving spouse.

In sum, a spouse who has a valid homestead claim need not be a title owner to the property to have a claim protecting a beneficial interest they have in the homestead property.  If the spouse is a title owner, upon the death of the other spouse, they will hold the property in fee simple.

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