Florida Commercial Law

Key Provisions of the FAR/BAR Residential Real Estate Contract

The Gainesville/Alachua County Association of Realtors (GACAR) began using the FAR/BAR contract last year.  Prior to that, GACAR had their own contract.  As Realtors and buyers and sellers of real estate in the Gainesville area get used to using this new contract, I thought it might be helpful to provide a summary of some of the key provisions in the FAR/BAR contract.

Use of Funds - The FAR/BAR Contract provides that the checks/funds must be "collected" -- ie. not susceptible to charge backs.  Thus, cashier's checks are not acceptable.

Preoccupancy - If preoccupancy occurs, the Buyer assumes the risk of loss and responsibility for maintenance and prorations as of the date of occupancy.

Financing - If financing not provided within financing period, either party may terminate from date of expiration of financing period  to date of Closing.  Termination requires affirmative action.

Counting days - The FAR/BAR contract uses calendar days, not business days.

Inspection Period - Right to Terminate in the "As-Is" version of the Contract - The inspection period is 15 days.  It is not necessary to include the inspection report.

Default - If any portion of deposits are paid to the listing broker, it shall be split between the listing and cooperating broker,  The Effect is that brokers (unless escrow agent) are not a party to these disputes and rights to deposits, if any, derive exclusively from the listing agreement.

Dispute Resolution - Parties have 10 days to resolve, then required to mediate prior to filing a lawsuit (except that mediation is not required prior to filing for an injunction)

Attorney's Fees - Provides for attorney's fees to the prevailing party in litigation

If you are entering into a contract to buy or sell property in the Gainesville area and you would like an attorney to review it before you sign, you can contact attorney Zana Holley Dupee to schedule a contract review consultation at (352) 379-5900.

Incapacity of a Spouse During a Pending Divorce

Divorces can take a while to finalize, and unfortunately, sometimes one spouse suffers a significant injury or health problem while the divorce is pending.  Who is legally able to make decisions for the incapacitated spouse in Florida while a divorce is pending?  Who is legally in control of the incapacitated spouse's property while the divorce is pending?

If the incapacitated spouse had documents in place, then they will control what happens.  These documents might include a Durable Power of Attorney, a Trust, a Healthcare Surrogate, or other documents.  It is important to revoke old documents and have new ones prepared when going through significant life changes, such as a divorce or even estrangement or separation.  If none of these documents have been prepared, then Florida law will determine who the decision maker is for the incapacitated spouse.

Let us take a quick look at the Durable Power of Attorney.  If the incapacitated spouse has named their spouse as the agent under the power of attorney, Florida's new Power of Attorney Act provides for an automatic termination of all authority granted to the spouse under the power of attorney upon the filing of an action for dissolution of marriage. Fla. Stat. 709.2109(2)(b).

If you are estranged from your spouse or in the process of seeking a divorce, it makes sense to re-do your existing Power of Attorney and prepare a new one naming a person other than your spouse as the agent.  The old Power of Attorney should be revoked and destroyed.

Now, let's take a quick look at Trusts.  Many people use revocable living trusts as an estate-planning and probate-avoidance device.  The other spouse is often named as either the initial Trustee or the successor Trustee in the trust documents.  If the trust documents do not address the situation of divorce or filing for divorce, then the other spouse may continue to serve as Trustee during and after divorce.  After a spouse becomes incapacitated, then they can not change the trust documents, and there may be no way to remove the estranged or ex-spouse as Trustee.  As soon as a divorce is contemplated or likely, the settlor of a trust should consider amending the trustee succession or the power of removal of trustee provisions so that the estranged or ex-spouse does not become Trustee of an incapacitated spouse's trust during or after a divorce.

Finally, let's take a quick look at Health Care Surrogate Designations.  This designation is effective until it is revoked.  If you are contemplating a divorce and you would not want your estranged spouse making your life-and-death health decisions for you while you are incapacitated, then you should revoke the prior Health Care Surrogate Designation and prepare a new document designating someone that you trust.

If there is no Health Care Surrogate Designation, then Florida law states that the health decisions are made by those in the following priority: a judicially appointed guardian, or if none, the patient's spouse.  Thus, if an incapacitated spouse were hospitalized and unable to make health care decisions, then the estranged spouse could have priority in making health care decisions.  If a divorce is contemplated or pending, it is highly recommended that you prepare a new Health Care Surrogate Designation to appoint a trusted person to make health decisions in the event of incapacity.

If you live in Florida and are considering a divorce, you may call the office of Cusumano & Dupee, P.L. to schedule a consultation to review any documents that you have and to revoke old documents and prepare new ones.  Both Zana Dupee and Barbara Cusumano assist clients with preparing needed documentation appointing decision makers for health and financial matters.  If you would like to schedule a consultation, you can call Zana Dupee at (352) 379-5900 or Barbara Cusumano at (352) 379-2828.

Can a Man be Required to Pay Child Support for a Child who is not Biologically His Child?

By Zana Holley Dupee, Esq.

     Many people are surprised to learn that Florida Law holds men responsible to support all children who are born to their wives, even if the child has a different biological father.  The law indirectly announces and implements a policy that children need families, homes, heritage, and inheritance more than biological fathers need rights or even responsibilities.  In fact, the child has a due process constitutional right to legitimacy in Florida.  The presumption of legitimacy is a constitutional right afforded to every child born into a marriage granting the child the right to remain legitimate, both legally and factually, if doing so is in the child's best interest. See Art. I, § 9, Fla. Const.

Florida Statute 742.301 states, “Husband as legal father.—Except as provided in ss. 742.302-.305, a husband shall be the legal father, and he shall have all of the rights and responsibilities of a legal (natural) guardian pursuant to s. 744.301, for all children conceived by or born to his wife during the term of their marriage.”

     The presumption of legitimacy was created primarily to protect the welfare of the child. Sacks v. Sacks, 267 So.2d 73, 76 (Fla.1972).  The presumption of legitimacy presumes that a child of a marriage is a marital child.  The courts have proven quite uneasy with the prospect of challenging the legal father relationship on the grounds that it is biologically inaccurate, particularly when it has existed for some time.

     For centuries, proving progenitation was problematic, so the law relied on the presumption of paternity arising from marriage to the mother, which came to be described as the strongest presumption known in the law. At common law, this presumption was aided by Lord Mansfield's Rule, which prohibited either a husband or a wife from testifying that a child born during the marriage was not the marital father's child. 

      In a court of law, the husband may overcome this presumption, but only with satisfactory evidence before he can divest himself of the duty to maintain a child.  The level of proof required to overcome this presumption was extremely high, especially since the wife and husband were prohibited from testifying and the biological father's testimony would have been a confession of a serious criminal offense.  In these instances, the presumption was effectively substantive law, requiring a husband to raise all children born to a marriage.

     Moreover, a man who fathers a child with a woman who is married to another man generally has no parental rights or responsibilities to the child. As to the biological father of a child born during the course of the mother's intact marriage, the mother's husband is the child's legal father unless and until a court effects the substitution.  Shuler v. Guardian Ad Litem Program, 17 So. 3d 333 (Fla. Dist. Ct. App. 5th Dist. 2009)

     Judge Sharp wrote in Callahan v. Department of Revenue, “mere biology [is] not a sufficient basis to disrupt an intact family. Pertinent considerations should relate to the best interest of the child.” In Department of Health and Rehabilitative Services v. Privette, the case that essentially created legal father status separate from biological fatherhood, the Florida Supreme Court agreed:

“It is conceivable that a man who has established a loving, caring relationship of some years' duration with his legal child later will prove not to be the biological father. Where this is so, it seldom will be in the children's best interest to wrench them away from their legal fathers and judicially declare that they now must regard strangers as their fathers. The law does not require such cruelty toward children.”

     The United States Supreme Court recognizes parental rights as fundamental but in the process has consistently held full parental rights do not arise from progenitation alone.  Instead, the federal constitutional right is focused on protection of the parental relationship.

     For these reasons, Florida law makes it difficult or impossible for the mother or another ostensible father to contest legal paternity once it is established.  A biological father of a child born into someone else's “intact” marriage has no standing to seek legal father status. There can be an exception where the marriage was broken before the biological father sought to claim legal fatherhood. Additionally, whether paternity is established by marriage or by acknowledgment, the courts will not entertain an action to disprove the status of an existing legal father without an evidentiary showing that it is in the child's best interest to do so.

     As you can see, paternity rights involve a web of confusing, old-fashioned laws and constitutional rights.  Do not assume that you know the rights of the marital or biological fathers of children in the State of Florida.  This is a confusing legal field that is also evolving in light of quick and inexpensive modern DNA blood tests that can establish conclusively who is the child’s biological father. 

     If you have a legal situation involving paternity issues, you should retain an experienced lawyer to assist you with your case.  Having a lawyer prepare the case properly for an evidentiary hearing in front of a judge can often help you to receive the legal outcome that you are hoping for.  If you have a situation involving paternity issues in the state of Florida, and you would like to schedule a consultation with attorney Zana Holley Dupee, call (352) 379-5900.

What is a "Collaborative" or Cooperative Divorce?

A collaborative divorce is one that is negotiated in a cooperative manner.  It is different from a litigation-oriented "win-lose" approach which some people have taken.  The goal is to resolve differences peacefully without the need for an adversarial trial.

There are associations of attorneys and mental health professionals who promote collaborative divorce.  Some of these even offer "certifications" in Collaborative Divorce.  This is not the same thing as being Board Certified by the Florida Bar.  The Florida Bar does not offer a collaborative divorce certification.  The Florida Bar only offers a "Family Law" Certification.  Ironically, in order to be Board Certified in Family Law, a lawyer must have fully litigated a number of adversarial divorces completely through a trial.  Thus, if you are seeking an attorney to assist you with your divorce in a collaborative or cooperative manner, Board Certification in Family Law may not be a good indicator of the type of attorney that you are looking for.

In the classic Collaborative Divorce scenario, each party is represented by counsel who is present for all negotiating sessions. Each attorney is trained to focus on the overall well-being of the entire family unit. The attorneys work as a team, seeking to reduce conflict and generate constructive solutions. In a collaborative divorce, the attorney can advocate the client's position within the overall framework of a restructured family because each attorney remains focused on a "win-win" solution.

However, some couples who have resolved many of their financial and parenting issues may only retain one attorney to help with a cooperative divorce.  Under the ethics rules of the Florida Bar, an attorney should not undertake Dual Representation in a divorce.  So, if only one attorney is used, it should be made clear which spouse is actually the attorney's client.  Also, the other spouse should be advised that they can see their own attorney and have their own legal counsel review any documents before they sign them. 

The goal of any cooperative divorce is to resolve issues that arise when a couple decides to separate. The goal of the collaborative process is to offer a couple a structured, non-adversarial process within which to resolve their property, support and parenting disputes. The collaborative approach creates an atmosphere of open communication and cooperation that assists the couple in shaping an agreement that fits the needs of their restructured family.

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How does Collaborative Divorce differ from Mediation?

In mediation, one neutral professional works with the couple to resolve disputes. The mediator assists the parties in understanding each other's points of view and developing settlement options. The mediator cannot give legal advice or advocate for either party.

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What other professionals are involved?

Couples who choose to divorce cooperatively have a wide option of resources upon which they can draw. As their circumstances require, they may choose an accountant, a real estate or business appraiser and a retirement account advisor to be present at their meetings or to provide information to assist in their decision-making process. The couple can share the costs of these third-parties, who will provide neutrally-based information regarding their assets and various methods of valuing and dividing them.

The couple may wish to involve a child psychologist to discuss special developmental or educational issues regarding their child.  The goal is for all professionals to participate in the joint effort to achieve a settlement agreement between the couple.

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What if we have to go to Court?

In the classical collabortive model, the collaborative attorney may not represent the client in Court. However, this does not have to be the way the case is structured.  The parties could work in a cooperative approach, but still allow for a judge to resolve any differences that cannot be resolved between the parties.  Usually, the cooperative approach is successful because the divorce laws are very clear as to the rules for splitting up assets and liabilities as well as child support and time sharing with the kids.  In most cases, the Court system does not become involved in the collaborative process until the final agreement is signed and the couple is ready to submit it to the Court. However, if some issues remain unresolved, it is possible to get agreement on the agreeable issues, and then submit the unresolved issues to the judge for a resolution.  

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How can we collaborate if we aren't getting along?

Many people recognize that the marriage is over, and yet they want a secure and private setting for entering into agreements regarding the parenting of their children and the distribution of their property.

But Collaborative Divorce isn't limited to those individuals. A collaborative attorney is specially trained to address conflict and disagreement in a creative and calming fashion. The team of attorneys works with their clients, individually and in the meetings, to acknowledge fears and concerns, and then focus the client toward a productive, non-adversarial resolution that is acceptable to the client.

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How does a Collaborative or Cooperative Divorce work?

The process itself utilizes a series of informal conferences attended by the attorneys and the clients, as well as any jointly-retained expert. An agenda can be set prior to each meeting, to limit the prospect of a "surprise issue" being raised. Clients work closely with their attorneys prior to the meetings, so that they are familiar with the issues to be discussed and have an understanding of the law in that particular area. All pertinent documentation is available prior to the meetings, to allow ample time for review, discussion and further research. All negotiations are conducted openly and the clients fully participate in the discussions.

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How much does it cost?

There is no set fee for a Collaborative Divorce. Collaborative representation requires a fee agreement between the attorney and client, and time is billed by the hour. Jointly-retained professionals are paid separately. However, the time spent in a collaborative meeting is much more cost-efficient than Court time, in that the attorney's time is solely focused upon resolving the client's case.

In most cases, a cooperative approach to divorce will save thousands of dollars in attorneys' fees when compared with an adversarial litigious approach.  This is probably the major reason that 80% of the divorces that I handle are resolved in a cooperative manner.

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How long does it take to finalize the divorce after we have an agreement on the issues?

The divorce can be finalized with the court in as little as 3 weeks after the spouses have signed a full agreement.

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Why shouldn't I just "do it myself" if my spouse and I can agree on the issues?

Although the Florida law on divorce is very clear on a lot of issues, it is also very complex.  It is often well worth the money to make sure you obtain competent legal advice before agreeing to any divorce proposal.  Additionally, in order to make sure that your agreement with your spouse is legally enforceable, you should have it written and prepared by an attorney.  Finally, it actually takes much longer to get divorced if you "do it yourself."  The Courts have a "Pro Se Family Law Clinic" that you are required to attend and meet with a court employee to review your divorce documents.  This can delay your divorce from being finalized for many months.  Many people are ready to "get it over with," and these additional months of waiting when you already have an agreement with your spouse can seem torturous.  Using an attorney can expedite this process.

If you are interested in consulting with an attorney regarding divorce issues in Florida, call Zana Holley Dupee at Cusumano & Dupee, P.L. at (352) 379-5900 to schedule a consultation.

Bogin Munns Lawyer Steps Out to Open Her Own Firm

Zana Holley Dupee has left Bogin Munns & Munns, P.A., where she was a Board Certified Real Estate Attorney, to launch her own shop, Cusumano & Dupee, P.L. with bankruptcy and probate attorney Barbara A. Cusumano.   Dupee said her practice focuses on real estate and other disputes. She represents owners, developers, builders, contractors and brokers.

"It's always been a dream of mine to go out on my own and offer my services to a wider market," said Dupee, 40, of her decision to open her own firm.  She had practiced at Bogin Munns since 2008. She explained that big-firm billable hours requirements were stressing her out.

She said that she wants to focus on her true passion: helping her clients reach their goals.  Her rates will also be a little lower since she will have lower overhead.  Her new rates range from $250 to $325, depending on the complexity of the legal matter.

"If you want a big-firm-quality lawyer, you're not going to get a better deal," she said.  "It used to be that you went to the biggest firms if you had an important case. Now you have other options. ... There are specialists in smaller firms who can do just as good a job without the overhead and higher rates."

Dupee said she brings "a healthy percentage" of her clients to her new firm, but declined to name them.  If you have a legal matter that you would like to consult with Ms. Dupee, call (352) 379-5900 to schedule an appointment.

Second Wife Loses Homestead Protection Because She Bought Homestead with Proceeds from Property Husband Placed in Trust for Children Prior to His First Wife Dying

By Zana Holley Dupee, Esq., B.S.C.

Board Certified Real Estate Attorney

     The homestead protection that homeowners have in the state of Florida helps prevent Floridians from losing their homes due to debts owed to creditors.  However, Florida law does allow equitable liens to be imposed on homestead property, particularly in cases of fraud.  In the recent case of Hirchert Family Trust v. Hirchert, 36 Fla. L. Weekly D1290 (Fla. 4th DCA 2011), the Florida Appeals Court found that the Husband violated his fiduciary duties as Trustee, so that the beneficiaries of the Trust were entitled to an equitable lien against his 2^nd wife’s homestead property.

     In that case, the Husband and his first wife lived in California. They created two trusts which provided that upon the death of the first spouse, all their assets, including their marital home in California, would be divided into a Survivor’s Trust for the benefit of the 2^nd spouse to die and a Residuary Trust for their children. The first wife died and pursuant to the trusts, the marital home was divided between the two trusts with 75 percent placed in the Residuary Trust for the children and the remaining 25 percent was placed in the Survivor Trust.

     The Husband was Trustee of both trusts, and the Residuary Trust only permitted him to access the earnings of the Residuary Trust, but not the assets held in the trust. He married a second wife and signed a deed transferring the title of the marital home from the Residuary Trust to himself, which violated the terms of the trust.  This transfer was a breach of his fidiciary duty as Trustee.  Later, he sold the home and used the proceeds to purchase a new home with the second wife.  They subsequently sold that property and bought another one in California as joint tenants. The husband died, and his second wife sold their home and used the proceeds to purchase a home in Florida.

     The successor trustee of the residuary trust subsequently filed suit against the second wife to require her to convey to the Residuary Trust 75 percent of the proceeds that the Husband obtained from the sale of the original home.  The court found that the Husband had breached his fiduciary duty as Trustee by conveying the title of the original home from the Residuary Trust to himself and held that 75 percent of the proceeds were traceable to the second wife’s current Florida homestead property.

     The Florida Appeals Court held that the Husband’s breach of his fiduciary duty was “constructive fraud” and thus may form the basis to apply the equitable lien exception to the homestead protection rules. Accordingly, the court held that the second wife’s homestead property was subject to an equitable lien for 75 percent of the proceeds that the Husband had obtained from the sale of the original home.

     If you need assistance with real estate, probate or trust litigation, you can call Zana Holley Dupee to schedule a consultation at (352) 379-5900.

New Homestead Rights for Surviving Spouses in Florida

By Zana Holley Dupee, Esq.

     Effective October 1, 2010, the legislature amended Florida Statute 732.401 to allow a surviving spouse to elect to take a 50% ownership interest instead of a life estate.  This would only apply to situations where the spouse is receiving a life estate in the decedent’s homestead property.  If the spouse elects the 50% interest, then the decedent’s children own the remaining 50% interest.

     Prior to the date that the spouse makes the election, the surviving spouse has a life estate and is responsible for all of the expenses relating to ownership, such as taxes and maintenance costs.  From the date that the spouse makes the election, then she is responsible to pay ½ of the ownership expenses and the children who are co-owners are responsible to pay the other ½ of the ownership expenses. 

     In order to make this election, the spouse must record a Notice of Election in the Official Records of the county in which the homestead property is located.  The spouse must record this notice within 6 months of the date of the decedent’s death, unless extended by law.  The Notice of Election must contain the following information: (1) decedent’s name and date of death; (2) surviving spouse’s name; and (3) the legal description of the homestead property.

     After the spouse makes this election, the spouse and children would be entitled to the remedy of partition.  Partition is a legal remedy which allows a co-owner of property to force the sale of the property and split the proceeds.  Partition is not available to the holder of a life estate or the remaindermen.

     This is a helpful change to Florida’s estate laws because it gives widows and widowers many more choices of how to handle their property when their spouse dies.  However, the surviving spouse must make this choice carefully because the election is irrevocable.  Because of the significant legal implications of this choice, it is highly recommended that you seek the counsel of a qualified attorney in the event that your spouse has recently passed away.

     If you need assistance with real estate, probate or trust litigation, you can call Zana Holley Dupee to schedule a consultation at (352) 379-5900.

More Florida Homestead Law

By Zana Holley Dupee, Esq.

    As written previously in this blog, the homestead is a very valuable asset in Florida.  It enjoys protection from creditors’ claims, and it gets a special tax exemption so less real estate taxes are paid on homestead property.  There have been some new cases decided in Florida courts that further explain homestead rights.

    The first case is DiGiorgio v. DiGiorgio.  This case stands for the rule that your ex cannot force sale of your new Florida residence to pay for past due child support or other money owed from a divorce judgment.  In this case, the wife argued that the ex-husband should not get homestead protection because the Ohio divorce judgment had been awarded prior to the ex-husband moving into and residing on the Florida property.  The court said that she was wrong.  The court determined that the ex-husband is correct that the levy and execution of the parties' property may be barred by the protection of homestead.  If the evidence shows that the property is the husband’s residence, then the property is protected from forced sale to satisfy the divorce judgment.

    The second case is De La Mora v. Andonie.  This case stands for the rule that the property tax appraiser should give a homestead tax exemption to the owners of residential real estate on the basis that their children are U.S. citizens, even if the owners are aliens who don’t qualify for “permanent residence” status that would entitle them to the homestead exemption.  The Florida court stated that the plain language of article VII, section 6(a) of the Florida Constitution provides that an owner of residential real estate in Florida is constitutionally entitled to an exemption from ad valorem taxation—more accurately, a reduction in the assessed value—under either of the following two separate and independent scenarios:   1. Where the owner of the property is a permanent resident on the property, or 2. Where someone legally or naturally dependent on the owner is a permanent resident on the subject property.

    The third case is In Re Williams.  This is a bankruptcy case where the homestead property was owned as a life estate by the mother of the bankrupt.  The bankrupt owned a remainder interest in the property.  The bankrupt lived in the home with his mother and claimed that his remainder should be considered exempt homestead property in the bankruptcy.  The Bankruptcy court found that the remainder interest should receive homestead protection in this case where the bankrupt resides on the property. The court noted that Florida courts consistently hold that the homestead exemption “should be liberally construed in favor of protecting the family home and those whom it was designed to protect.” Southern Walls, Inc. v. Stilwell Corporation, 810 So.2d 566, 569–70 (Fla. 5th DCA 2002). See also Coy v. Mango Bay Property and Investments, Inc., 963 So.2d 873, 876 (Fla. 4th DCA 2007). 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.” Snyder v. Davis, 699 So.2d 999, 1002 (Fla.1997).

    The fourth case is C&M Inv. Group, Ltd. V. Campbell.  This case shows that there is a limit to when the court will protect homestead property.  In this case, the homestead property was purchased by funds that were obtained by fraud.  In this case, the Florida court found that the homestead purchased with fraudulent funds was NOT protected.

    If you have any questions about your homestead rights, or if you need assistance with real estate, probate or trust litigation, you can call Zana Holley Dupee to schedule a consultation at (352) 379-5900.

Each Spouse in a Separated Couple is Entitled to Their Own Homestead Tax Exemption

By Zana Holley Dupee, Esq.

                Sometimes married couples separate, without getting divorced.  Then, they proceed to establish separate households.  The question has come up regarding whether each spouse can claim a homestead tax exemption on separate property.

                Homestead Tax Exemption is one of the many “homestead rights” in the state of Florida.  Florida's homestead tax exemption derives from Article VII, Section 6(a) of the Florida Constitution, which provides that a homestead exemption extends to “[e]very person who has the legal or equitable title to real estate and maintains thereon the permanent residence of the owner, or another legally or naturally dependent upon the owner.” However, section 6(b) directs that “[n]ot more than one exemption shall be allowed any individual or family unit or with respect to any residential unit.” Art. VII, § 6(b), Fla. Const.  

                The Homestead Tax Exemption is financially valuable.  It often reduces annual property taxes by $1,000 or more.  It allows the “Save Our Homes” exemptions to be applied as well.  So, it is not surprising that the taxing authorities in Pasco County wanted to argue that married couples are only entitled to one homestead tax exemption, even if they are separated and living apart.

                However, in the case of Wells v. Haldeos, the Florida courts found that the Pasco County Property Appraiser was wrong.  The appeals court pointed out that the property appraiser was required to follow the Florida Administrative Code rules.  Florida Administrative Code Rule 12D-7.007(7), provides as follows:

If it is determined by the property appraiser that separate permanent residences and separate “family units” have been established by the husband and wife, and they are otherwise qualified, each may be granted homestead exemption from ad valorem taxation under Article VII, Section 6, 1968 State Constitution. The fact that both residences may be owned by both husband and wife as tenants by the entireties will not defeat the grant of homestead ad valorem tax exemption to the permanent residence of each.

                In the prior case of Law v. Law, the court agreed that the husband could not have two homesteads and that a husband and wife in an intact marriage could not have two homesteads.  However, the court held that the husband's homestead could be different from the wife's homestead “where their separation was bonafide,” and it was the intent of the husband to live in his separate home.

                The appeals court in Wells noted that the property appraiser would have to review financial information from the couple in these situations to determine that they are completely financially separated.  The court also noted that the person claiming the homestead exemption has the burden of proving that he or she qualifies for such.

                If you have legal questions regarding your homestead tax exemption, or if you need assistance with real estate, probate or trust litigation, you can call Zana Holley Dupee to schedule a consultation at (352) 379-5900.

 

Homestead Law in Florida

by Zana Holley Dupee

There is a lot of homestead litigation lately producing some interesting court rulings.  This, of course, begs the question as to what "homestead law" is in Florida.  Most people think we are talking about "claiming homestead" on property taxes to get the tax exemption.  That is certainly one meaning of homestead in Florida.  However, the concept of "homestead" in found in various parts of the law in Florida, and it has different implications in different contexts.

In real estate and probate law, lawyers are often more concerned about the Florida Constitutional homestead provisions than about the tax exemption.  The Florida Constitution Article X Section 4 provides:

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:

(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner's consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner's family;

(2) personal property to the value of one thousand dollars.

(b) These exemptions shall inure to the surviving spouse or heirs of the owner.

(c) 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. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.

Based on this Constitutional provision, the homestead is protected from creditors.  This constitutional protection from creditors is inherited by the heirs of the owner.  Also, the spouse has "homestead rights," and they are not allowed to be "disinherited" without their consent.  So, how does this affect real estate and probate?  Well, just because one spouse's name is not on the property does not mean that they don't have rights in the property.  The spouse in title would need the other spouse's signature to deed or mortgage the property.  The spouse in title cannot will the property to someone else unless the other spouse signs a waiver of their homestead rights in the property.  Also, as a related matter, in family law, the marital home is considered to be a part of the marital estate in the divorce context regardless of which spouse's name is on title, unless there is a valid prenuptual or postnuptual agreement changing that.  The homestead is also considered "Exempt" property when qualifying for Medicaid and for bankruptcy.

The bottom line is the "homestead" is a very valuable type of property in Florida which the law goes to great lengths to protect for the owner and their spouse.  Please get a good lawyer to review your situation before you make decisions about your homestead because you may have rights or options that you did not know you had.  Also, you may not be allowed to do certain things without your spouse's consent even if you are the only person in title on the property.

If you have questions about your homestead property and your legal rights, or if you need assistance with real estate, probate or trust litigation, you can call Zana Holley Dupee to schedule a consultation at (352) 379-5900.