May 28, 1975 AGO 75-146
TAXATION
HUSBAND AND WIFE MAINTAINING SEPARATE RESIDENCES
MAY BOTH QUALIFY FOR HOMESTEAD EXEMPTION
To: John W. Mikos, Sarasota County Property Appraiser, Sarasota
Prepared by: David M. Hudson, Assistant Attorney General
QUESTION:
Should a county property appraiser grant homestead
exemption to both applicants when a married woman and her
husband own two separate residences, both as tenants by the
entireties, and the married woman is separated from her
husband and living and making her permanent home in one of
the residences and her husband is living and making his
permanent home in the other and both timely filed for
homestead exemption?
SUMMARY:
A married woman and her husband may establish separate
permanent residences without showing "impelling reasons" or
"just grounds" for doing so. 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 Art. VII, s. 6, State Const. 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.
Your question should, in my opinion, be answered in the
affirmative.
The "homestead exemption" from ad valorem taxation is
provided by Art. VII, s. 6, State Const.:
(a) Every 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, shall be exempt from taxation thereon,
except assessments for special benefits up to the assessed
valuation of five thousand dollars, upon establishment of
right thereto in the manner prescribed by law. The real
estate may be held by legal or equitable title, by the
entireties, jointly, in common, as a condominium, or
indirectly by stock ownership or membership representing
the owner's or member's proprietary interest in a
corporation owning a fee or a leasehold initially in excess
of ninety-eight years.
(b) Not more than one exemption shall be allowed any
individual or family unit or with respect to any
residential unit....
Considering the provisions of the homestead ad valorem tax
exemption as contained in Art. X, s. 7, State Const. 1885, one
of my predecessors in office expressed the opinion in AGO 0-899,
Biennial Report of the Attorney General, 1939-1940, p. 449, that
where a married woman has established a legal residence separate
from her husband in the home which she owns and in which she
lives, she would be entitled to the homestead exemption, and
that would "not take away from the husband his rights to the
exemption upon the property on which he lives and makes his
permanent home." Accord: Attorney General Opinion 051-34,
Biennial Report of the Attorney General, 1951-1952, p. 346, and
AGO 052-158, id. at 347. It should be noted that each of these
prior opinions considered as significant the fact that the
establishment of a separate domicile by the wife was proper
because the cohabitation of the husband and wife as husband and
wife had come to an end, i.e., upon separation for purposes of
divorce. See also AGO 063-9; compare AGO 047-389, Biennial
Report of the Attorney General, 1947-1948, p. 193. However, the
Florida Supreme Court, in it opinion in Judd v. Schooley, 158
So.2d 514 (Fla. 1963), rev'g 149 So.2d 587 (2 D.C.A. Fla.,
1963), held that even though a married woman was living
congenially with her husband, nonetheless it is legally possible
for "... a married woman, in good faith, to claim a permanent
home in Florida property even though her husband is legally
domiciled elsewhere." The court further held "... that a
showing of necessity to establish the separate abode is not
essential to a showing of good faith under Article X, Section 7,
supra. Id." (Emphasis supplied.) See also Ashmore v. Ashmore,
251 So.2d 15 (2 D.C.A. Fla., 1971), cert. dismissed, 256 So.2d
513 (Fla. 1972).
In AGO 064-5, released shortly after the decision in Judd
v. Schooley, supra, was rendered my predecessor in office was
asked whether both the husband and wife, each owning separate
dwelling houses, could be granted homestead ad valorem tax
exemptions. It was expressly presumed that
... the wife resides in her dwelling, the husband residing
in his dwelling, each alone, during periods of time, while
at other periods of time they reside together in the
husband's dwelling, and at still other periods of time they
reside together in the wife's dwelling.
Considering "the facts and circumstances surrounding the
question" presented, my predecessor expressed the opinion that
the question should be answered in the negative-that both could
not be "granted homestead tax exemption on dwelling houses
maintained by each of them merely because they spend a large
part of the time in their separate dwelling houses." Id. Under
the facts considered therein, it is still my opinion that it
would be improper to grant homestead tax exemption to both the
husband and the wife, because the requirement of Art. VII, s.
6(a), State Const., that the respective homesteads must be the
"permanent residence of the owner" is not satisfied as to both
the husband and the wife. However, any implication in AGO 064-5,
supra, that both the husband and wife could not qualify merely
because there were no "impelling reasons for separate residences
and domiciles" is hereby receded from. As stated by the court
in Judd v. Schooley, supra:
... Indeed, the rule was as Milton expressed it in Paradise
Lost, Book X, Line 195: "And to thy husband's will Thine
shall submit; he over thee shall rule."
However, we have traveled a long way since Milton, as every
husband knows. We deem it unnecessary to continue to cloud
the law with the mist of an out-moded fiction that has been
dispelled by the light of present-day realities. [(See) 158
So.2d at 516.]
See also Ashmore v. Ashmore, supra; Marshall v. State, 301 So.2d
477 (1 D.C.A. Fla., 1974); Art. X, s. 5, State Const.; and ss.
708.08 and 725.07, F.S. Cf. AGO 063-47 where the opinion was
expressed that an unmarried minor, whose disabilities of nonage
have not been removed, is unable to establish permanent
residence separate and apart from that of his or her parents.
If both the husband and wife have established separate
domiciles and residences, Art. VII, s. 6(a), State Const.,
requires only that the owner "maintain thereon the permanent
residence of the owner." The Legislature has defined the words
"permanent residence" in s. 196.051, F.S., and the question of
whether a person is maintaining his or her permanent residence
on certain property is, within the above statutory guideline, a
question of fact to be determined in the first instance by the
property appraiser. Attorney General Opinions 058-329, 069-37,
072-154, and 074-115. The property appraiser is thus limited to
a determination of whether separate residences have in law or in
fact been established, not whether there are impelling reasons,
AGO 064-5, supra, or just grounds, AGO 051-34, supra, for the
separate residences, and a determination that the property is
the permanent residence of the owner.
The fact that both of the residences under consideration
herein are owned by both the husband and the wife as tenants by
the entireties would not defeat the grant of homestead ad
valorem tax exemption to the permanent residence of each.
Compare, AGO's 0-899, supra, where the husband and wife each had
separate ownership of their respective homestead properties,
with AGO 051-34, supra, where the ownership of the separate
homestead properties was not considered, and AGO 052-158, supra,
where it was stated that "[t]he wife must be the owner of the
property claimed by her as a homestead." Article VII, s. 6(a),
State Const., expressly provides that the homestead property may
be held by the entireties. Additionally, I have previously
expressed the opinions that "[b]oth husband and wife are natural
persons and each is therefore entitled to recognition as a
property owner with respect to the interest in a tenancy by the
entirety," AGO 071-143.
Section 6(b) of Art. VII, State Const., presents an
additional factor which must be considered here also. That
section provides, in pertinent part, that "[n]ot more than one
exemption shall be allowed any... family unit..." The question
thus arises as to whether a husband and wife who have each
established bona fide separate permanent residences, but who are
still married, still constitute one "family unit" within the
purview of Art. VII, s. 6(b).
The provisions in Art. VII, s. 6(b), State Const.,
restricting the homestead ad valorem tax exemption to one per
family unit appears for the first time in the 1968 revision; the
1885 Constitution, Art. X, s. 7, contained no such limitation.
The proposed revision of the Constitution drafted by the
revision commission originally recommended the words "married
couple," but it was changed and ultimately enacted and ratified
as family unit. See "Commentary" to Art. VII, s. 6(b), by Talbot
"Sandy" D'Alemberte, 26A F.S.A. 112. It has been held that a
single individual could be considered a family unit. Dandridge
v. Gabel, 261 N.Y.S.2d 371, 373. In Solomon v. Davis, 100 So.2d
177 (Fla. 1958), the Florida Supreme Court quoted with approval
the finding of the trial court that, with regard to a married
woman living with her husband, "[h]er household would exist as a
family unit, regardless of her marital status, and regardless of
the presence or absence of a husband in the home. (Emphasis
supplied.) Cf AGO 071-269 in which I expressed the opinion that
where the husband and wife are joint owners of a single
residence, they would not be entitled to two homestead
exemptions because "there would not appear to be separate
residential or family units." Additionally, Art. VII, s. 6(a),
State Const. provides the homestead exemption to "[e]very
person" who is otherwise qualified, and again, the legal fiction
that a woman's identity disappears or merges with that of her
husband's upon marriage is no longer of any efficacy in Florida.
Ashmore v. Ashmore, supra; see also Art. X, s. 5, State Const.
It is my opinion, pending judicial or legislative
clarification otherwise, that upon establishment of separate,
bona fide permanent residences, the husband and wife may also
establish separate family units so that Art. VII, s. 6(b),
supra, would not preclude granting homestead ad valorem tax
exemption to the permanent residence of each.
Initially, it is my opinion that, as in considering whether
the wife has established a residence separate from her
husband's, it is not essential that the husband and wife be
"legally separated" in determining whether they have also
established separate family units, for the marriage relationship
continues to exist even though the husband and wife may be
legally separated, AGO 071-228. However, if one spouse should
continue to maintain the home of the other, such as by making
the payments on the mortgage, and for insurance and taxes, it
would appear that the spouses under such circumstances have not
established separate family units. See AGO 070-154. The burden
is, of course, on the applicants to demonstrate that they have
established separate family units, for
Article VII, Section 6, of the Constitution of the State of
Florida, F.S.A., does not establish an absolute right to a
homestead exemption. Rather, it clearly provides that
taxpayers who otherwise qualify shall be granted an
exemption only "upon establishment of right thereto...."
[Horne v. Markham, 288 So.2d 196, 199 (Fla. 1973).]
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