Southwest Florida's Health and Wellness Magazine Health and Wellness Articles
By James W. Mallonee
There is a case pending with the following facts: 1) The spouses are separated and had been for a good ten years; 2) One of the spouses elected to purchase a vacant lot and build a residential home on the lot; 3) The spouse who was building the new home had two children who were over the age of 18; 4) The spouse building the home names herself and the two children as owners of the property with rights of survivorship; and, 5) The spouse building the new home moves in upon completion with her children and within two years dies. The question is whether the surviving spouse has any rights to the property.
Florida’s homestead law is broken down into two major sections, Article X, Fla. Constitution and Section 732.401, Fla. Statute. Paragraph 4 of the Constitution simply says:
“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.”
Notice the language “…the owner of homestead real estate, joined by the spouse if married may alienate the homestead…” The key language is joined by the spouse if married. In essence, given the marriage, could the spouse deed the property with joint ownership with her children without getting the estranged spouse’s consent (“joined by”).
Florida’s statute, Section 732.401(1) states:
“If not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes.”
This same statute goes on to state in paragraph 5, “This section does not apply to property that the decedent owned in tenancy by the entireties or in joint tenancy with rights of survivorship.”
The argument is the “rights of survivorship.” By adding this to the deed naming the decedent, the children and not the surviving spouse mean that the property is not considered homestead and the surviving husband is disqualified as an owner even though the constitution states he or she is at least supposed to provide consent to the property being conveyed away from him? That appears to be the real question to this case: Is the property homestead and was the failure to get the surviving spouse’s consent cause such failure to extinguish the children’s right to the property upon the death of the mother?
Under normal circumstances, the constitution will always override a statute; thus, does that mean that the constitution is to be viewed first and override a statute. The answer is yes, the constitution does override a statute. If that is the case, then does the deceased spouse’s failure to get the surviving spouse’s consent place the property back into being homestead property subject to the constitution.
The final answer to the above has not been made by the court, but the significance of the response will have a huge impact on conveyances between spouses who elect not to live with one another, but fail to get a divorce. To prevent this from becoming your problem, be sure to get consent from your spouse should you elect to build your own residence and place the children on the deed as a tenants with rights of survivorship. If you are not sure about how to do this, contact the attorney of your choice and have that discussion.
This article is intended for informational use only and is not for purposes of providing legal advice or association of a lawyer – client relationship.
James W. Mallonee, P.A.
946 Tamiami Trail, #206, Port Charlotte, FL 33953
(941) 206-2223
871 Venetia Bay Blvd., #225, Venice, FL 34285
(941) 207-2223
