Welcome to the website of the law office of Steven D. Rubin.  Mr. Rubin has been licensed to practice law in the State of Florida since 1981. His office  is located at 200 West Palmetto Park Road, Suite 301, Boca Raton, Florida 33432. He is admitted to practice before all of the State Courts in Florida and is a Florida Bar Board Certified Real Estate Attorney.

HOMESTEAD REMINDER – WILL YOUR SPOUSE AND FORMER SPOUSE LIVE TOGETHER IN YOUR FORMER MARITAL HOME AFTER YOUR DEATH?

We are all familiar with the Florida constitutional homestead protection against the forced sale of real property. Pursuant to Article X, Section 4, of the Florida Constitution, a natural person can claim a homestead exemption from forced sale on 160 acres of land if located outside a municipality, and one-half acre of land if located within a municipality, provided the land constitutes the residence of the owner. In addition, the homestead protection extends to the residence of the owner’s “family”. Upon the owner’s death, the owner’s surviving spouse or heirs of the owner can retain the exemption to prevent the deceased owner’s creditors from forcing the sale of the owner’s homestead property, and the owner’s surviving spouse and lineal descendants may have protected distribution rights in the homestead property. Generally, if a decedent is survived by a spouse or  a minor child, the homestead real property cannot be devised, and the surviving spouse takes a life estate,with a vested remainder to lineal descendants.

In Friscia v. Friscia,  39 FLaLWeekly D1810a (Fla. 2dDCA  August 27,2014), we were reminded about the need to determine who is residing in the real property, even if the owner is not, to determine whether it may still be homestead property. In Friscia, Mr. Friscia owned a home with his wife. They divorced, and Mr. Friscia moved out of the marital home and subsequently remarried. However, Mr. Friscia’s minor sons continued to reside with his former wife in the former marital home, and Mr. Friscia provided financial support for his sons. Mr. Friscia died, and his son and second wife claimed that the former marital home was Mr. Friscia’s homestead, and therefore not subject to the extensive creditor claims filed against the estate. The trial court concluded that even though the former wife was awarded the exclusive use and possession of the former marital home, because Mr. Friscia provided financial support to his two sons and the two sons resided in the former marital home, the former marital home was entitled to Mr. Friscia’s homestead exemption as his “family’s” residence (but only to the extent of Mr. Friscia’s one-half interest in the property  – one-half because he and his former wife each then owned an undivided one-half interest as tenants in common, as divorced owners of a prior tenancy by the entireties).  Mr. Friscia’s interest in the former marital home was thus not subject to the creditor claims against his  Estate.

As a consequence of this ruling, the second wife, who by law acquired a life estate in one half of the former marital home (due to the restriction on the devise of homestead property), then argued that as a life tenant she was entitled to reside in and enter the former marital home on an unrestricted basis (which was then occupied by the former wife and Mr. Friscia’s children), even though the marital settlement agreement signed by Mr. Friscia granted the former wife exclusive use and possession of the former marital home. The second wife also argued that the former wife could not sell the marital home when the oldest child reached the age of majority, even though the marital settlement agreement contained a provision requiring the sale of the marital home if the former spouse had not exercised her option to buy out Mr. Friscia’s one half interest in the property. The trial court lamented about the “untenable consequences associated with the implementation of this Court’s order.” I suppose the trial court was imagining the former spouse and second wife sitting down at the dinner table each night for a “friendly” discussion of the day’s events,  and sleeping in the same house together for the indefinite future!

Not to worry. The Appellate Court affirmed the trial court’s order, but also concluded that although the marital settlement agreement was not a waiver of the homestead exemption, its terms were binding on Mr. Friscia’s heirs. Thus, the second wife would not have any use of the former marital home while the former wife was residing there (because the marital settlement agreement granted the former wife the exclusive use and possession of the home), and the former spouse could still require the sale of the former marital home after the oldest child reached the age of majority.