Joint Tenancy Home is Not Homestead for Purposes of Administration

In Marger v. De Rosa, 2D10-819 (Fla. 2d DCA Jan. 28, 2011), the decedant owned his home with his mother as “joint tenants with full rights of survivorship and not as tenants in common.” At the time of the decedant’s death, he had two minor children and one adult child but no spouse. The Second DCA affirmed the trial court, which held that the house was not homestead and became the sole property of the decedant’s mother at the instant of the son’s death.

Article X, section 4(c), of the Florida Constitution provides that “[t]he homestead shall not be subject to devise if the owner is survived by spouse or minor child.”  This language does not restrict the type of interests in real property a person may acquire or how a person may title his or her property.  Instead, it restricts a person’s attempt to devise property he or she owns when homestead status has  attached to that property.  Thus, even though [the decedant] had children who were eligible for homestead protection at the time he purchased this property along with his mother, he was free to take the property as a joint tenant with the right of survivorship.  In so doing, the property did not become homestead property when he and his mother purchased it.  Thus, when [the decedant] died, his interest in the property terminated, and it became the sole property of his mother as the surviving joint tenant without any life estate for the benefit of his children.

. . .

If the circumstances had been reversed and [the mother] had died first, under the facts of this case, it would appear that homestead status would have attached to [the decedant's] interest in the property at the instant of his mother’s death.  But those are not the facts of this case.  Accordingly, we affirm the trial court’s decision that this property was not a part of [the decedant's] probate estate

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