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Uniform Title Standards - Ch. 18 Homestead Exemptions

Author johnbsims3
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#1 | Posted: 24 Oct 2006 12:16 
CHAPTER 18
HOMESTEAD

HOMESTEAD EXEMPTIONS — HEAD OF FAMILY
STANDARD: ON OR AFTER JANUARY 8, 1985, HOMESTEAD PROPERTY MAY BE OWNED BY A
NATURAL PERSON, WITHOUT REGARD TO THE OWNER'S STATUS AS HEAD OF A FAMILY.
Problem: Mary Doe, a single woman living alone, owned and resided on Blackacre. A money judgment was
obtained against her after January 8, 1985. May Mary Doe have her home designated exempt
from levy by forced sale to satisfy this judgment?
Answer: Yes.
Authorities
& References:
FLA. CONST. art. X, §4(a) (1968) (as amended); F.S. 222.01,
222.02 (1985); ATIF TN 16.04.12.
Comment: Effective January 8, 1985, the Florida electors amended the 1968 Florida Constitution, Article
X, section 4(a) replacing property owned by the "head of a family" with property owned by a
"natural person." Florida Statutes 222.01 and 222.02 relating to designation by an owner of
homestead for an exemption from forced sale were amended to allow a natural person rather than
the head of a family to obtain protection from levy. This change also applies to restrictions on
alienation and devise of homestead property. The Florida Supreme Court applied the definition
of "head of a family" in Florida Constitution Article X, section 4(a) relating to the forced sale
exemption, to the restrictions on alienation and devise in section 4(c). Holden v. Gardner, 420
So. 2d 1082 (Fla. 1982). Based on this reasoning, it appears the definition of a "natural person"
in section 4(a) for the forced sale exemption also applies to the restrictions on alienation and
devise in section 4(c). See ATIF TN 16.04.02.
STANDARD 18.1
ALIENATION OF HOMESTEAD PROPERTY
JOINDER OF SPOUSE
STANDARD: WHEN THE OWNER OF HOMESTEAD PROPERTY IS MARRIED, THE SPOUSE MUST
JOIN IN ANY CONVEYANCE OR ENCUMBRANCE OF THE PROPERTY, UNLESS THE PROPERTY IS
HELD AS A TENANCY BY THE ENTIRETIES AND IS CONVEYED TO THE SPOUSE OR IS HELD BY ONE
SPOUSE AND IS CONVEYED TO BOTH SPOUSES AS TENANTS BY THE ENTIRETIES.
Problem 1: John Doe, a married man, owned homestead property. He alone executed a deed in 1965
conveying it to his wife, Mary Doe. Is Mary's title marketable?
Answer: No. Joinder of the spouse was required. The answer might be different if the conveyance occurred
on or after the effective date of the 1968 Florida Constitution. See Comment.
Problem 2: John Doe, a married man, owned homestead property. He alone executed a deed in 1975
conveying it to himself and his wife, Mary Doe, as tenants by the entireties. Is the deed valid?
Answer: Yes. See Jameson v. Jameson, 387 So. 2d 351 (Fla. 1980).
Problem 3: John Doe, a married man, owned homestead property. He alone executed a deed conveying it to
Richard Roe. John's wife, Mary Doe, executed a separate deed purporting to convey the property
to Richard Roe. Is Roe's title marketable?
Answer: No. Both spouses must join in a conveyance of homestead property.
Problem 4: Mary Doe, a married woman, owned Blackacre, and resided on it with her husband, Joe Doe. John
was an invalid and Mary was the head of the family. Mary Doe alone executed a deed conveying
Blackacre to Richard Roe. Is the deed valid?
Answer: No. John Doe must join in the deed. It is immaterial whether the deed was executed prior to or
subsequent to the effective date of the 1968 Florida Constitution, or whether Mary Doe, under
prior law, was a free dealer. See Bigelow v. Dunphe, 143 Fla. 603, 197 So. 328 (1940); ATIF TN
16.01.02, 16.04.05.
Problem 5: Mary Doe owned Blackacre and resided on it with her husband, John Doe, who was the head of
the family. In May 1985, Mary executed a deed conveying Blackacre to Richard Roe. Is the deed
valid?
Answer: No. John Doe must join in the deed. On or after January 8, 1985, the restriction on alienation of
homestead property applies whether or not the owner of the homestead is the head of a family.
ATIF TN 20.03.01.
Problem 6:
John and Mary Doe,
husband and wife,
owned homestead
property as a tenancy
by the entireties. John
alone executed a deed
c o n v e y i n g t h e
homestead to Mary. Is
M a r y ' s t i t l e
marketable?
Answer:
Yes.
Authorities
& References:
FLA. CONST. art. X, §4(c) (1968); FLA. CONST. art. X, §§1, 4 (1885); F.S. 689.11 (1985);
Estep v. Herring, 154 Fla. 653, 18 So. 2d 683 (1944); John v. Purvis, 145 Fla. 354, 199 So. 340
(1940); Williams v. Foerster, 335 So. 2d 810 (Fla. 1976); Moorefield v. Byrne, 140 So. 2d 876
(3d D.C.A.), cert. denied, 147 So. 2d 530 (Fla. 1962); Jameson v. Jameson, 387 So. 2d 351 (Fla.
1980); 1A BOYER, FLORIDA REAL ESTATE TRANSACTIONS §21.03[2] (1987); I
FLORIDA REAL PROPERTY PRACTICE §9.74 (CLE 2d ed. 1971); ATIF TN 16.02.03; 8
FUND CONCEPT 33 (1976).
Comment: Joinder is required under both the 1885 and 1968 Florida Constitutions. F.S. 689.11(1), however,
was amended in 1971 to permit interspousal conveyances of homestead property without joinder.
The statute's constitutionality has been upheld with respect to property held as a tenancy by the
entireties and applied to a 1965 conveyance. Williams v. Foerster, 335 So. 2d 810 (Fla. 1976).
The 1968 Florida Constitution has been construed to permit the interspousal creation of a tenancy
by the entireties in homestead property without the joinder of the grantee spouse. See Jameson
v. Jameson, 387 So. 2d 351 (Fla. 1980). This case also indicates that a conveyance of homestead
property from one spouse to the other is valid without the joinder of the grantee spouse. Caution
should be exercised in this latter situation, however, as it was not involved in the facts of the
Jameson case. Neither of these two conveyances of homestead property was valid without spousal
joinder if made prior to January 7, 1969, the effective date of the 1968 Florida Constitution.
On or after January 8, 1985, property owned and resided on by a natural person may have
homestead status without regard to the owner's status as head of a family. See Title Standard 18.0
(Homestead Exemptions — Head of Family).
For a history of Florida homestead law, see Crosby and Miller, Our Legal Chameleon, The
Florida Homestead Exemption (pts. I-V), 2 U. FLA. L. REV. 12, 219, 346 (1949); Note, Our
Legal Chameleon is a Sacred Cow: Alienation of Homestead Under the 1968 Constitution, 24
U. FLA. L. REV. 701 (1972); Maines and Maines, Our Legal Chameleon Revisited: Florida's
Homestead Exemption, 30 U. FLA. L. REV. 227 (1978).
See also Title Standards 6.4 (Conveyance of Entireties Property By One Spouse To The Other),
18.2 (Gratuitous Alienation Of Homestead Property Before January 7, 1969) and 18.3 (Gratuitous
Alienation Of Homestead Property On Or After January 7, 1969).
STANDARD 18.2
GRATUITOUS ALIENATION OF HOMESTEAD PROPERTY
BEFORE JANUARY 7, 1969
STANDARD: PRIOR TO JANUARY 7, 1969, HOMESTEAD PROPERTY COULD BE ALIENATED ONLY
IN A BONA FIDE TRANSACTION BASED UPON A VALUABLE CONSIDERATION.
Problem 1: John Doe owned Blackacre and resided on it as head of his family with his wife, Mary Doe, and
their child, Alice. In 1967 John Doe, joined by Mary Doe, made any one of the following
gratuitous conveyances: (1) he conveyed Blackacre to Mary Doe; (2) he conveyed Blackacre to
himself and Mary as tenants by the entireties; (3) he conveyed Blackacre to Richard Roe who
thereupon conveyed it to John and Mary Doe as tenants by the entireties. Subsequently, John Doe
died. Was Mary Doe the owner of Blackacre in fee simple absolute?
Answer: No. All of the gratuitous conveyances would be void. Upon John Doe's death, Mary took a life
estate and Alice owned a remainder in fee simple absolute. It is immaterial whether Alice is a
minor or an adult at the time of the conveyance or at John's death.
Problem 2: John Doe and Mary Doe, husband and wife, owned Blackacre as a tenancy by the entireties. They
lived on it with their two children, Thomas, age 24, and Alice, age 15. In 1967 John and Mary
Doe jointly executed a deed gratuitously conveying Blackacre to their son, Thomas. Was the deed
valid?
Answer: Yes. The requirement of establishing a valuable consideration was for the benefit of those who
would take an interest in the homestead property upon the death of the owner. No such interest
exists when the homestead is initially owned as a tenancy by the entireties. See Denham v. Sexton,
cited below.
Authorities
& References:
FLA. CONST. art X, §§1, 4 (1885); Reed v. Fain, 145 So. 2d 858 (Fla. 1962); Denham v. Sexton,
48 So. 2d 416 (Fla. 1950); Church v. Lee, 102 Fla. 478, 136 So. 242 (1931); Pace v. Woods, 177
So. 2d 779 (3d D.C.A. Fla. 1965); Gotshall v. Taylor, 196 So. 2d 479 (4th D.C.A. Fla. 1967),
cert. den. 201 So. 2d 558; Betts v. Hawkins, 202 So. 2d 135 (2d D.C.A. Fla. 1967), cert. den. 207
So. 2d 689; 1A BOYER, FLORIDA REAL ESTATE TRANSACTIONS §21.03[2] (1987); I
FLORIDA REAL PROPERTY PRACTICE §9.74 (CLE 2d ed. 1971).
Comment: The conveyances in Problem 1 would be valid if made in a bona fide transaction for a valuable
consideration. However, although a valuable consideration would be presumed in a transfer to a
stranger, the intrafamily conveyance is presumptively void and the existence of a valuable
consideration must be established by the party seeking to assert the validity of the deed. But see
Long v. Cavage, 384 So. 2d 1356 (5th D.C.A. Fla. 1980).

STANDARD 18.3
GRATUITOUS ALIENATION OF HOMESTEAD PROPERTY
ON OR AFTER JANUARY 7, 1969
STANDARD: ON OR AFTER JANUARY 7, 1969, HOMESTEAD PROPERTY MAY BE ALIENATED BY
GIFT.
Problem 1: John Doe owned Blackacre and resided on it as head of his family with his wife, Mary Doe, and
his minor child, Alice Doe. In 1980 John Doe, joined by Mary Doe, gratuitously conveyed
Blackacre to John Doe and Mary Doe as tenants by the entireties. Subsequently, John Doe died.
Was Mary Doe the fee owner of Blackacre?
Answer: Yes.
Problem 2: Same facts as above, except that Mary Doe did not join in the conveyance. After John Doe's
death, was Mary Doe the fee owner of Blackacre?
Answer: Yes.
Authorities
& References:
FLA. CONST. art. X, §4(c) (1968); Jameson v. Jameson, 387 So. 2d 351 (Fla. 1980); 1A
BOYER, FLORIDA REAL ESTATE TRANSACTIONS §21.03[2] (1987); I FLORIDA REAL
PROPERTY PRACTICE §9.74 (CLE 2d ed. 1971); 13 FUND CONCEPT 6 (Feb. 1981).
Comment: In Jameson v. Jameson, 369 So. 2d 436 (3d D.C.A. Fla. 1979), the Third District Court of Appeal
construed article X, §4(c) of the Florida Constitution to require the spouse of a homestead
titleholder to join in an interspousal conveyance of the homestead to the husband and wife as
tenants by the entireties and declared F.S. 689.11(1) unconstitutional to the extent that it would
allow interspousal conveyance of the homestead without joinder. This decision was reversed in
Jameson v. Jameson, 387 So. 2d 351 (Fla. 1980), in which the Florida Supreme Court held that
the Florida Constitution does not require joinder in an interspousal conveyance of solely owned
homestead property to the husband and wife as tenants by the entireties, and that F.S. 689.11(1)
is consistent with the constitutional provision as construed by it.
See Title Standard 18.1 (Alienation of Homestead Property — Joinder of Spouse).
STANDARD 18.4
ALIENATION OF HOMESTEAD PROPERTY — POWER OF ATTORNEY
STANDARD: A CONVEYANCE OR ENCUMBRANCE OF HOMESTEAD PROPERTY ACCOMPLISHED
BY THE EXERCISE OF A POWER OF ATTORNEY OR DURABLE POWER OF ATTORNEY
SPECIFICALLY AUTHORIZING A CONVEYANCE OR ENCUMBRANCE OF REAL PROPERTY IS
ACCEPTABLE.
Problem 1: John Doe, the homestead owner of Blackacre, resided on it with his wife, Mary Doe. Mary Doe
executed a power of attorney with all the formalities of a deed to John Doe. The power of
attorney, which was recorded, specifically authorized John Doe to convey real property. John Doe
conveyed Blackacre to Richard Roe, executing the deed: "John Doe" and "Mary Doe, by John
Doe as her attorney-in-fact." Does the conveyance to Richard Roe constitute a cloud upon the title
to Blackacre?
Answer: No.
Problem 2: John Doe, the homestead owner of Blackacre, resided on it with his wife, Mary Doe. John Doe
executed a power of attorney with all the formalities of a deed to Mary Doe. The power of
attorney, which was recorded, specifically authorized Mary Doe to convey real property. Mary
Doe conveyed Blackacre to Richard Roe, executing the deed: "John Doe, by Mary Doe as his
attorney-in-fact" and "Mary Doe." Does the conveyance to Richard Roe constitute a cloud upon
the title of Blackacre?
Answer: No.
Problem 3: John Doe, the homestead owner of Blackacre, resided on it with his wife, Mary Doe. John Doe
executed a power of attorney with all the formalities of a deed to Richard Roe. Mary Doe
executed a power of attorney with all the formalities of a deed to Richard Roe. The powers of
attorney, which were recorded, specifically authorized Richard Roe to convey real property.
Richard Roe conveyed Blackacre to Stephen Grant, executing the deed: "John Doe, by Richard
Roe as his attorney-in-fact" and "Mary Doe, by Richard Roe as her attorney-in-fact." Does the
conveyance to Stephen Grant constitute a cloud upon the title to Blackacre?
Answer: No. The same result also follows if Richard Roe was acting under a single power of attorney
jointly executed by both John and Mary Doe. Also, the result would be the same if Richard Roe
acted as attorney-in-fact for only one spouse and the other spouse executed the deed.
Authorities FLA. CONST. art. X, §4(c); F.S. 689.111 (1979); City National Bank of Florida v. Tescher, 578
So.2d 701 (Fla. 1991)
Comment: F.S. 689.111, which became effective on May 12, 1971, provides that the owner of homestead
property may execute a deed or mortgage by virtue of a power of attorney, and joinder may be
accomplished by the exercise of a power of attorney. In addition, F.S. 709.015(4), dealing with
the exercise of powers of attorney when the principal has been reported by the armed forces as
missing, implies that homestead property held as a tenancy by the entireties may be conveyed
under a power of attorney after the lapse of one year from the report that the principal is missing.
Even though the Constitution requires a joinder of the spouse in an alienation by the owner, such
joinder may be by power of attorney.
STANDARD 18.5
ALIENATION OF HOMESTEAD PROPERTY
BY GUARDIAN PRIOR TO OCTOBER 1, 1970 OR
FROM JULY 1, 1975 THROUGH OCTOBER 1, 1977
STANDARD: A CONVEYANCE OR ENCUMBRANCE OF HOMESTEAD PROPERTY BY A GUARDIAN
OF THE PROPERTY FOR AN INCOMPETENT OWNER OR SPOUSE, MADE PRIOR TO OCTOBER 1,
1970, OR FROM JULY 1, 1975 THROUGH OCTOBER 1, 1977, SHOULD NOT BE RELIED UPON AS
EFFECTIVE.
Problem 1: John Doe owned Blackacre and resided on it as the head of his family with Mary Doe, his wife,
and their minor child. Mary Doe was adjudged incompetent on January 10, 1967, and John Doe
was appointed guardian of the property of Mary Doe. John Doe conveyed Blackacre to Richard
Roe on June 10, 1967. John Doe joined in the conveyance as guardian of the property of Mary
Doe, pursuant to a court order authorizing the sale. Should the conveyance to Richard Roe be
relied upon as conveying marketable title to Blackacre?
Answer: No.
Problem 2: John Doe owned Blackacre and resided on it as the head of his family with Mary Doe, his wife,
and their minor child. John Doe was adjudged incompetent on January 10, 1967, and Mary Doe
was appointed guardian of the property of John Doe. Mary Doe, as guardian, conveyed Blackacre
to Richard Roe on June 10, 1967 pursuant to a court order authorizing the sale. Mary Doe joined
in the conveyance as the spouse of the homestead owner. Should the conveyance to Richard Roe
be relied upon as conveying marketable title to Blackacre?
Answer: No.
Authorities
& References:
FLA. CONST. art. X, §4(c) (1968); FLA. CONST. art. X, §§1, 4 (1885); F.S. 745.15 (1969);
745.15 (1971); 745.15 (1973); F.S. 744.441 (1975); 1A BOYER, FLORIDA REAL ESTATE
TRANSACTIONS §21.03[2] (1987); I FLORIDA REAL PROPERTY PRACTICE §9.74 (CLE
2d ed. 1971); ATIF TN 16.02.01, 16.02.02, 16.04.09.
Comment: Guardian deeds of homestead property were generally not relied upon under the 1885 Florida
Constitution. However, pursuant to the 1968 Florida Constitution, which provided for alienation
of an incompetent's homestead through statute, F.S. 745.15 (1969) was amended effective
October 1, 1970, to include alienation of homestead property by guardians. This statute remained
valid until subsection (1) was repealed, effective July 1, 1975, to be reenacted as F.S. 744.441
(1975), but without a specific provision for the alienation of homestead property. In light of prior
(and subsequent) remedial legislation it appears that the legislature intended F.S. 744.441 (1975)
to provide a means for alienation of an incompetent's homestead property. However, pending
judicial clarification of the legislative intent in the repeal of F.S. 745.15 and the enactment of F.S.
744.441, attorneys should not accept a guardian's deed of homestead executed from July 1, 1975
through October 1, 1977.
F.S. 744.441(12) was amended effective October 1, 1977 to state that with court approval the
guardian may alienate or encumber real property of the ward's estate, including homestead
property.
The factual situations covered by this Standard should not be confused with situations involving
property that has lost its status as homestead and is thereafter sought to be alienated by a guardian.
See ATIF TN 16.04.09.
STANDARD 18.6
ALIENATION OF HOMESTEAD PROPERTY
BY GUARDIAN BETWEEN OCTOBER 1, 1970 AND JULY 1, 1975, OR
ON OR AFTER OCTOBER 1, 1977
STANDARD: ON OR AFTER OCTOBER 1, 1970, THROUGH JUNE 30, 1975, AND ON OR AFTER
OCTOBER 1, 1977, HOMESTEAD PROPERTY MAY BE ALIENATED OR ENCUMBERED BY THE
GUARDIAN OF THE PROPERTY OF AN INCOMPETENT OWNER OR SPOUSE ON PETITION AND
ORDER OF THE CIRCUIT COURT.
Problem 1: John Doe owned Blackacre and resided on it as the head of his family with Mary Doe, his wife,
and their minor child. Mary Doe was adjudged incompetent on January 10, 1973, and John Doe
was appointed guardian of the property of Mary Doe. John Doe conveyed Blackacre to Richard
Roe on June 10, 1973. John Doe joined in the conveyance as guardian of the property of Mary
Doe, pursuant to an order of the circuit court authorizing the sale. Was the conveyance valid?
Answer: Yes.
Problem 2: John Doe owned Blackacre and resided on it as the head of his family with Mary Doe, his wife,
and their minor child. John Doe was adjudged incompetent on December 10, 1977, and Mary Doe
was appointed guardian of the property of John Doe. Mary Doe, as guardian, conveyed Blackacre
to Richard Roe on June 10, 1978 pursuant to a court order authorizing the sale. Mary Doe joined
in the conveyance as the spouse of the homestead owner. Was the conveyance valid?
Answer: Yes.
Authorities
& References:
FLA. CONST. art. X, §4(c) (1968); F.S. 745.15 (1973); F.S. 26.012 (1973 & Supp. 1974); F.S.
744.441 (1977); 1A BOYER, FLORIDA REAL ESTATE TRANSACTIONS §21.03[2] (1978);
I FLORIDA REAL PROPERTY PRACTICE §9.74 (CLE 2d ed. 1971); ATIF TN 16.02.01.
Comment: See Title Standard 18.5 Comment for sequence of statutory amendments.
On or after October 1, 1970 through December 31, 1973, statutory authority existed for a
guardian of the property of an incompetent to convey homestead property held as a tenancy by
the entireties if only one spouse was incompetent. F.S. 745.15(1), (4) (1971); F.S. 745.15(1), (4)
(1973). On or after January 1, 1974 through June 30, 1975, and on or after October 1, 1977,
statutory authority exists for a guardian to convey such property even when both spouses are
incompetent. F.S. 745.15(1), (4) (1973); F.S. 744.441(12) (1985). See ATIF TN 16.02.01.
Except for property owned by the ward in a tenancy by the entireties, statutory authority exists
for the encumbrance of homestead by a guardian of the property, with court approval, on or after
October 1, 1970 through July 1, 1975 and on or after October 1, 1977. F.S. 744.441(12) (1977);
745.15 (1) (1971). On or after January 1, 1974 through July 1, 1975 and on or after October 1,
1977, a guardian could encumber property owned by the ward in a tenancy by the entireties;
however, for all other periods statutory authority did not exist that allowed such property to be
encumbered. Compare F.S. 744.441(12) (1979); F.S. 745.15(4) (1973) with F.S. 745.15(4)
(1971). See ATIF TN 16.02.01.
STANDARD 18.7
DEVISE OF HOMESTEAD PROPERTY BEFORE JANUARY 7, 1969
STANDARD: A DEVISE OF HOMESTEAD PROPERTY BY ONE DYING BEFORE JANUARY 7, 1969, WAS
VALID ONLY IF THE DECEDENT WAS NOT SURVIVED BY EITHER A WIDOW OR LINEAL
DESCENDANT.
Problem 1: John Doe died in 1967 survived by his widow, Mary Doe, and two adult children. By his will he
devised his homestead to his widow, Mary. Was the devise valid?
Answer: No. John was survived by a widow and lineal descendants. F.S. 731.05(1) (1973) prohibits this
devise, and F.S. 731.27 (1973) states that the homestead will descend to the widow for life with
a remainder to the
lineal descendants.
Problem 2:
John Doe, a widower,
died in 1967 and by his
will devised his
homestead to Thomas
Doe, one of his
surviving children.
Was the devise valid?
Answer:
No. Title would
descend to all his
children equally. The
same result would
follow if John Doe was
survived only by his
son, Thomas Doe, to
whom title would pass
by descent. The ages
of the children are
immaterial, as they are
all lineal descendants.
The Problem, of
course, assumes that
John Doe was the head
of a family at the time
of death.
Problem 3:
Mary Doe died in 1967
survived by her
dependent husband,
John Doe, and an adult
married daughter,
Alice Jones. By her
will she devised her
homestead to her
daughter Alice. Was
the devise valid?
Answer:
No. Mary was survived
by a lineal descendant,
and therefore could not
devise the homestead.
Title would descend to
her husband John and
her daughter Alice
equally. This assumes
that Mary was the head
o f t he f ami l y
composed of herself
and John.
Problem 4:
Mary Doe died in 1967
survived solely by her
dependent husband,
John Doe. By her will
she devised her
homestead to her
sister, Sally. Was the
devise valid?
Answer:
Yes. Mary was not
survived by either a
widow or lineal
descendant, and therefore could devise the homestead.
Authorities
& References:
FLA. CONST. art. X, §4 (1885); F.S. 731.05(1), 731.23, 731.27 (1973); Stephens v. Campbell,
70 So. 2d 579 (Fla. 1954); 1A BOYER FLORIDA REAL ESTATE TRANSACTIONS §21.03[3]
(1987); FLORIDA PROBATE PRACTICE §23.8 (CLE 1973); ATIF TN 16.04.02.
STANDARD 18.8
DEVISE OF HOMESTEAD PROPERTY ON OR AFTER JANUARY 7, 1969
STANDARD: A DEVISE OF HOMESTEAD BY ONE DYING ON OR AFTER JANUARY 7, 1969, IS VALID
IF THE DECEDENT IS NOT SURVIVED BY EITHER SPOUSE OR MINOR CHILD, AND A DEVISE MAY
BE MADE TO THE SPOUSE IF THERE IS NO MINOR CHILD.
Problem 1: John Doe, a widower, died after January 7, 1969, survived by his three adult children. By his will
he devised his homestead to one of his children. Was the devise valid?
Answer: Yes. Since John was not survived by a spouse or minor child, there were no restrictions on the
devise of his homestead. Presumably he could have excluded all of his children and devised the
homestead to anyone else. In re Estate of McGinty, 258 So. 2d 450 (Fla. 1971) supports this,
although the devise in that case was to one of the children. On or after January 1, 1976, see also
F.S. 732.4015 (1985).
The devise would not be valid if John were survived by a minor child. Effective July 1, 1973, the
age of majority was changed from 21 years to 18 years of age. F.S. 1.01(14) (1985).
Problem 2: John Doe died after January 7, 1969, survived by his widow, Mary Doe, and two adult children.
By his will he devised his homestead to his widow, Mary. Was the devise valid?
Answer: Yes. The 1968 Florida Constitution was amended in 1972 to permit this, effective as of January
2, 1973. In fact, a devise such as this would be valid if made on or after January 7, 1969. See In
re Estate of McCartney, 299 So. 2d 5 (Fla. 1974) upholding such a devise made in 1970. On or
after January 1, 1976, see also F.S. 732.4015 (1985).
Problem 3: John Doe died after January 7, 1969, survived by his widow, Mary Doe, and two minor children.
By his will he devised his homestead to his widow, Mary. Was the devise valid?
Answer: No. As John was survived by minor children, the devise was invalid.
Problem 4: Mary Doe died after January 7, 1969, survived by her dependent husband, John Doe, and two
adult children, Thomas and Alice. By her will she devised her homestead to her son, Thomas.
Was the devise valid?
Answer: No. Mary was survived by a spouse. Since she had no minor children, she could have devised the
homestead to her spouse, but not to anyone else. The result would be the same if John was not
dependent, and therefore Mary was not the head of a family, provided that Mary died on or after
January 8, 1985.
Problem 5: John Doe, a single man living alone on Blackacre, died in May, 1985. He was survived by an
adult son and minor daughter, neither of whom lived with nor was dependent on him. By his will,
John Doe devised Blackacre to his brother. Was the devise valid?
Answer: No. The devise was not valid because John was survived by a minor child. Effective January 8,
1985, a single person's residence is subject to the restrictions on devise of homestead property.
See ATIF TN 16.04.02.
Authorities
& References:
FLA. CONST. art X, §4(c) (1968); F.S. 732.401, 732.4015 (1985); F.S. 731.05, 731.27 (1973);
see also F.S. 732.102, 732.103 (1985); F.S. 731.23 (1973); In re Estate of McCartney, 299 So.
2d 5 (Fla. 1974); In re Estate of McGinty, 258 So. 2d 450 (Fla. 1971);
1 A B O Y E R ,
FLORIDA REAL
E S T A T E
TRANSACTIONS
§21.03[3] (1987).
FLORIDA PROBATE
PRACTICE §§19.5,
19.8 (CLE 1976).
Comment:
On or after January 8, 1985, property owned and resided on by a natural person may have homestead status without
regard to the owner's status as head of a family. See Title Standard 18.0 (Homestead Exemptions — Head of Family).
When not devised as permitted by law, as in Problems 3 and 4, the homestead descends under the law of intestate
succession. Prior to January 1, 1976, when the decedent was survived by a widow and lineal descendants, F.S. 731.27
provided a life estate for the widow with a vested remainder to the lineal descendants. See F.S. 731.05, 731.23, 731.27
(1973); Stephens v. Campbell, 70 So. 2d 579 (Fla. 1954); 1A BOYER, FLORIDA REAL ESTATE TRANSACTIONS
§21.03[3] (1987). On or after January 1, 1976, if the decedent is survived by a spouse and lineal descendants, F.S.
732.401 provides a life estate for the surviving spouse with a vested remainder to the lineal descendants. See F.S.
732.401, 732.4015 (1985).
For a chart that outlines the law set forth in the standard, see 1A BOYER, FLORIDA REAL ESTATE TRANSACTIONS
§21.04 Chart E (1987). See also Title Standard 18.8-1 (Descent Of Homestead Property).
Article X, section 5 of the 1968 Florida Constitution states in part: "There shall be no distinction between married women
and married men in holding, control, disposition, or encumbering of their property, both real and personal. . . ." On or
after January 1, 1976, this provision is incorporated in F.S. 732.401 and F.S. 732.4015 (1985), which read "spouse"
instead of "widow." The constitutional provision should be considered whenever dealing with a pre-1976 devise of
homestead. See ATIF TN 2.06.03.
STANDARD 18.8-1
DESCENT OF HOMESTEAD PROPERTY
STANDARD: (BEFORE JANUARY 1, 1976) HOMESTEADS DESCEND AS OTHER INTESTATE
PROPERTY, BUT IF THE DECEDENT IS SURVIVED BY A WIDOW AND LINEAL DESCENDANTS, THE
WIDOW TAKES A LIFE ESTATE WITH A VESTED REMAINDER TO THE LINEAL DESCENDANTS IN
BEING AT THE DECEDENT'S DEATH. (ON OR AFTER JANUARY 1, 1976) THE ABOVE RULE APPLIES
WHETHER THE SURVIVING SPOUSE IS MALE OR FEMALE.
Problem 1: John Doe, the owner of homestead property, died intestate, survived only by his wife Mary and
son Thomas. May Mary alone convey the homestead in fee simple absolute?
Answer: No. Mary takes a life estate with a vested remainder to Thomas.
Problem 2: Mary Doe, the owner of homestead property, died intestate, survived only by her dependent
husband John and son Thomas. May John alone convey a 1/2 interest in the homestead in fee
simple absolute?
Answer: (Before January 1, 1976) Yes. John takes a fee simple absolute by intestate succession equally
with his son, the other heir, as F.S. 731.27 applied only to widows. But see FLA. CONST. art. X,
§5 on or after January 7, 1969.
(On or after January 1, 1976) No. John takes a life estate with a vested remainder to Thomas as
F.S. 732.401 applies to either spouse.
Problem 3: John Doe, the owner of homestead property, died intestate, survived only by his wife Mary and
grandson Stephen. May Mary alone convey the homestead in fee simple absolute?
Answer: No. Mary takes a life estate with a vested remainder to the lineal descendant, Stephen.
Authorities
& References:
F.S. 732.410, 732.4015 (1985); F.S. 731.27, 731.23 (1973); 1A BOYER, FLORIDA REAL
ESTATE TRANSACTIONS §21.03[3] (1987); I FLORIDA REAL PROPERTY PRACTICE
§11.12 (CLE 2d Ed. 1971); ATIF TN 2.06.02.
Comment: Article X, section 5 of the 1968 Florida Constitution states in part: "There shall be no distinction
between married women and married men in the holding, control, disposition, or encumbering of
their property, both real and personal . . . ." On or after January 1, 1976, this provision is
incorporated in F.S. 732.401 and F.S. 732.4015 (1985), which reads "spouse" instead of
"widow."
The constitutional provision should be considered whenever dealing with pre-1976 descent of
homestead.
If the homestead is owned as a tenancy by the entireties, on the death of the head of the family the
property survives to the other spouse without regard to the law otherwise pertaining to the descent
of homestead. F.S. 732.401(2) (1985); 1A BOYER, FLORIDA REAL ESTATE
TRANSACTIONS §21.03[3] (1987).
See also Title Standard 18.8 (Devise Of Homestead Property On Or After January 7, 1969).
STANDARD 18.9
HOMESTEAD — JURISDICTION OF COUNTY JUDGE
STANDARD: PRIOR TO JANUARY 1, 1973, THE COUNTY JUDGE HAS JURISDICTION TO DETERMINE
HOMESTEAD STATUS OF A DECEDENT'S REAL PROPERTY AND THOSE ENTITLED TO IT, BUT AN
ADJUDICATION BY THE COUNTY JUDGE OF TITLE OR BOUNDARIES TO REAL PROPERTY WAS
VOID SINCE SUCH MATTERS WERE WITHIN THE EXCLUSIVE JURISDICTION OF THE CIRCUIT
COURTS.
Problem: John Doe died intestate in 1971. He was survived by his widow, Mary Doe, and his adult son,
Thomas. Blackacre was John Doe's homestead property, and title was in his name alone. In the
probate proceeding the county judge issued an order on May 1, 1971 as follows: Blackacre was
the homestead property of John Doe and as such was exempt from the claims of creditors; title
to Blackacre did not pass under John Doe's will but descended to Mary Doe and Thomas
according to the constitution and statutes of the State of Florida; in accordance with the applicable
statutes Mary Doe took a life estate in Blackacre with the remainder interest going to Thomas.
Was the order valid?
Answer:
The order was valid
i n s o f a r a s i t
det ermi ned tha t
Blackacre was the
homestead property of
John Doe, exempt
from his creditors, and
that it did not pass by
the will but descended
to Mary Doe and
Thomas according to
applicable provisions
of the constitution and
statutes. But it was not
valid insofar as it
purported to adjudicate
the particular estate of
Mary Doe and
Thomas. If the
determination that
Mary Doe took a life
estate and Thomas
took a remainder is
called into question, it
must be resolved in the
circuit court rather
than the county judge's
court.
Authorities
& References:
FLA. CONST. art V,
§§6(3), 7(3); art. X, §1
(1885); F.S. 731.27,
734.08 (1971); In re
Estate of Noble, 73 So.
2d 873 (Fla. 1954);
First Nat'l. Bank v.
Broom, 207 So. 2d 69
(3d D.C.A. Fla. 1968);
In re Estate of Weiss,
102 So. 2d 154 (3d
D.C.A. Fla. 1958);
ATIF TN 2.06.04.
Comment:
Effective January 1,
1973, circuit courts
have exclusive original
j u r i s d i c t i o n of
proceedings relating to
the settlement of the
estates of decedents
and in all actions
i nvo lving ti t l e ,
boundaries, or right of
possession of real
p r o p e r ty. FLA.
CONST. art. V, §5
(1968); F.S. 26.012
(1985).
STANDARD 18.10
SALE OF DEVISED HOMESTEAD BY PERSONAL REPRESENTATIVE
PROPERTY WHICH WAS THE HOMESTEAD OF A TESTATE DECEDENT WHO WAS NOT SURVIVED
BY SPOUSE OR MINOR CHILD MAY BE CONVEYED BY THE PERSONAL REPRESENTATIVE, EITHER
UNDER POWER OF SALE CONTAINED IN THE WILL, OR UPON ORDER OF THE COURT, PROVIDED
THE DEVISEE WOULD NOT BE CONSIDERED AN HEIR AT LAW OF THE TESTATOR UNDER F.S.
732.103 (DESCENT AND DISTRIBUTION).
Problem 1: John Doe died testate, May 2, 1991, survived only by three adult children. His residence was not
specifically devised in the will, and the residuary beneficiaries were three non-profit charitable
corporations. The will contains full powers of sale. May the personal representative convey the
property without joinder in the deed by the three corporate devisees?
Answer: Yes.
Problem 2: John Doe died testate, May 2, 1991, survived only by three adult children. His residence was
specifically devised to a non-profit charitable corporation. The will contains full powers of sale.
May the personal representative convey the property without joinder in the deed by the specific
devisee?
Answer: Yes, provided there has been obtained from the specific devisee a consent to the conveyance.
Problem 3: John Doe died testate, May 2, 1991, survived only by three adult children. His residence was
specifically devised to one of the children. The will contains full powers of sale. May the personal
representative convey the property without joinder in the deed by the specific devisee?
Answer: No, unless the child to whom the property was devised joins in the conveyances or conveys by
separate deed.
Authorities
& References:
FLA. CONST. Article X §4(b); City National Bank of Florida v. Tescher, 578 So. 2d 701 (Fla.
1991).
Comments: A judicial determination that the property was the homestead of the decedent is not necessary.
Proof that the decedent was not survived by a spouse or minor child may be by an affidavit of a
knowledgeable person. Proof that the devisee of the homestead property is not an heir of the
decedent may likewise be by affidavit of a knowledgeable person.
http://www.floridahomesteadservices.com

Mortgage and Real Estate Industry Florida Homestead Services - Florida Homestead Exemption Act Forum / Mortgage and Real Estate Industry /
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