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If living in California for 2 years, can homestead exemption be claimed in FL?

Author Nelly Wilson
Participant Female

#1 | Posted: 18 Jul 2008 11:35 
I was wondering if a person can claim homestead exemption if she has been separated from her husband and living in California for the past 2 years?

The husband who resided in Florida for 20+ years passed away on January 10, 2008 and now the wife wants to claim the homestead. She is still living in California.

Keep in mind that the husband has a minor child who resides at the home with his father and natural mother at the time of death. Shouldn't the son have the exemption?



Please let me know, since time is running out. I need to know where I can find your response.



Thx,
Nelly Wilson

Author johnbsims3
Admin Male

#2 | Posted: 18 Jul 2008 12:30 | Edited by: johnbsims3 
The wife can claim the homestead if it is a primary residence. Do a search on 'descent' or click this forum topic
http://www.floridahomesteadservices.com

Author Nelly Wilson
Participant Female

#3 | Posted: 18 Jul 2008 18:44 
This still doesn't answer my question. Can she claim the homestead even if she is not a resident of Florida for over 2 years?

quit claim deeds were signed over to the husband last year and they have been separated for 2 years. No will or trust was ever done.

Is she intitled to the homestead or does it go tot he minor child that is residing at the home at time of death?
Nelly Wilson

Author johnbsims3
Admin Male

#4 | Posted: 19 Jul 2008 07:26 | Edited by: johnbsims3 
You answered the question yourself..."she is not a resident of Florida for over 2 years"

She must be a resident as of January 1st of the current tax year and the home must be a primary residence.
http://www.floridahomesteadservices.com

Author johnbsims3
Admin Male

#5 | Posted: 19 Jul 2008 19:35 | Edited by: johnbsims3 
In order to be entitled to the homestead claim or 'exemption', continuous, uninterrupted physical presence of the residence is not required nor is a daily presence essential. When homestead status has been acquired, it continues until the homestead is abandoned, which is normally evidenced by establishment of domicile at some other place, or alienated in a manner provided by law.

Under Florida law, the intent to establish homestead is evidenced by specific acts toward creating a permanent abode which are not contradicted by any subsequent behavior. Intent coupled with actual use are all that is required to make the written legal claim. Establishing homestead status under Florida law requires actual use and occupancy of property; however, continuous, uninterrupted presence is not required. M.O. Logue Sod Service, Inc. v. Logue, 422 So.2d 71 (Fla. 2d DCA 1982).

Daily residence is not essential to create or maintain a "homestead", nor is it disrupted by temporary absence with the intent to return. Collins v. Collins, 150 Fla. 374, 7 So.2d 443. You do not have to occupy the premises 24 X 7.

Involuntary absence is not sufficient to support a finding of abandonment. Dean v. Heimbach, 409 So.2d 157 (Fla. 1st DCA 1982). Although an involuntary nature of absence from property claimed as homestead under Florida law is an important factor to consider, a homeowner sufficiently occupies the property to establish homestead status under Florida law if this is where he "hangs his hat", even though he spends the current bulk of his time living away from property and his involuntary absence from property is required or even to defend and serve time for a criminal or civil suit. Compliance with the "intention coupled with actual use" requirement is sufficient.

The requirement regarding legal abandonment, which boils down to two issues, is voluntarily moving to a new residence and claiming it as homestead, and/or rental of the property for profit. A homestead has been "abandoned" when it is no longer a bona fide home and place of permanent abode. Law v. Law, 738 So.2d 522, 24 Fla. L. Weekly D1924. Temporary absence from a homestead will not deprive it of its homestead character, unless there is a design of permanent abandonment. Only permanent abandonment of a homestead deprives the property of its homestead character. Lanier v. Lanier, 95 Fla. 522, 116 So. 867.

The Florida statutes define "permanent residence" as follows:

"Permanent residence" means that place where a person has his true, fixed, and permanent home and principal establishment to which, whenever absent, he has the intention of returning. A person may have only one permanent residence at a time; and, once a permanent residence is established in a foreign state or country, it is presumed to continue until the person shows a change has occurred. Fla.Stat.Ann. 196.012(17).
http://www.floridahomesteadservices.com

Author johnbsims3
Admin Male

#6 | Posted: 19 Jul 2008 19:45 
Regarding domicile, "A person's domicile is that place where he has his true, fixed and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom." No one factor, not even place of voting registration, or a declaration of domicile or residence made for official purposes, is controlling. While statements of intention carry considerable weight, they will not prevail over contrary facts evidencing actual intent. Among the influential factors are the place where civil and political rights are exercised, taxes paid, real and personal property (such as furniture and automobiles) located, driver's and other licenses obtained, bank accounts maintained, location of club and church membership and places of business and employment. Husak v. Rasman, 1989 WL 13688 (E.D.Pa.)
http://www.floridahomesteadservices.com

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If living in California for 2 years, can homestead exemption be claimed in FL?
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