What does 'Separate Family Units' actually mean? I have been asked this question repeatedly so I will attempt to clarify it.
You can also look at my other posts here: http://www.homesteadpropertyexemption.info/florida -case-law-4/separate-residences-homestead-exemptio n-separate-family-units-553.html
and here: http://www.homesteadpropertyexemption.info/questio ns-answers-34/requirements-to-establish-separate-f amily-units-864.html
I’ve been asked by numerous Florida residents and their spouses if they could maintain separate residences and claim separate residency and property tax exemptions on both owned by a married couples properties. The normal question is that one spouse makes his or her permanent residence in County A and the other spouse is a resident of another County, Count B, or another state and claiming a residency based tax or STAR exemption there.
In Florida, the Constitutional provision states that only one exemption is allowed to a "family unit". The confusion lies as to what a "Family Unit" means, as the Legislature has not defined the term, yet the several Property Appraiser's throughout the state seemingly make up their own definition of the term, and none of them seem to agree.
Thus, the Property Appraisers and taxpayers of Florida have been forced to speculate as to what kind of relationship or living arrangement constitutes a family unit. This issue has not been completely addressed by any appellate courts, but there is persuasive authority from the Attorney General’s office and several Florida trial courts that offer some guidance as to whether and when a married couple can claim separate homestead exemptions.
Regardless of whether the properties are owned as husband and wife or individually in regards to ownership in the Deed, the spouses must decide which property is the family unit’s permanent residence if they are in an “intact” or “congenial” marriage. If the couple is behaving or acting in any way, in a manner consistent with the common sense notion of what it means to be a family, then they are not entitled to two separate property tax exemptions. If the spouses cancel the exemption in the other state or other Florida County, then the otherwise qualified spouse may claim homestead in County A or B, whichever county applies. In some cases, a married couple may qualify for more than one homestead property tax exemption, but they must first demonstrate that they are not a so-called "family unit".
So, what constitutes a "Family Unit"? First, we have to look at the Constitution, the applicable Statute and the Administrative Code which states:
Florida Constitution, Article VII, Section 6(b): Not more than one exemption shall be allowed any individual or family unit or with respect to any residential unit.
Florida Administrative Code:
Chapter 12D-7.012(2): No family unit shall be entitled to more than one homestead tax exemption.
Chapter 12D-7.012(5): Property held jointly will support multiple claims for homestead tax exemption; however, only one exemption will be allowed each residential unit and no family unit will be entitled to more than one exemption.
Now that we know the law, what does the collective Florida Property Appraiser's look at? Here is a good list to go by:
1. Is a divorce pending?
2. What was the date the couple separated? Florida does not have legal separation but paperwork from another state can be presented.
3. What is the spouse’s name and residence address?
4. Does the spouse claim any residency based tax exemption or credit in Florida or any other state? This may or may not be applicable.
5. Does the couple spend time together in both homes or go back and forth between them? This may or may not be applicable.
6. Does the couple vacation or socialize together? This may or may not be applicable.
7. Does the couple have joint bank or financial accounts?
8. Is either spouse a mortgagor on the other’s residence?
9. Is either spouse a beneficiary on any insurance policy or financial account owned by the other? This may or may not be applicable.
10. Do the spouses file their IRS returns separately?
11. Does either spouse receive financial assistance from the other, including utility, car insurance, mortgage, or any other form of payments? This is one of the key factors, whether or not the spouses support each other. In other words, do you provide support to OR receive support from your spouse in any form including but not limited to insurance coverage or premium payments, mortgage assistance or payment, utility payments, car payments, or any other form of financial payments or assistance? (Note: DOES NOT INCLUDE court ordered alimony or child support.)
12. Address on Driver's Licenses and Vehicle Registrations.
13. Address on Voter's Registration.
14. Copies of Bank Statements, Utility Bills, Homeowner's Insurance, Etc.
However, all of the above notwithstanding, the Second District Court of Appeal has issued an opinion in the Pasco County Wells v. Haldeos case. The 2nd District rejected the Property Appraiser’s contention that a married couple can never receive separate homestead exemptions, and instead held that “in the unique circumstances presented in this case, where the husband and wife have established two separate permanent residences in good faith and have no financial connection with and do not provide benefits, income, or support to each other, each may be granted a homestead exemption if they otherwise qualify.”
Married couples are prohibited by law from receiving two homestead exemptions on properties that they own jointly. However, where the properties are not jointly owned, they must still overcome the constitutional limitation of one homestead exemption per "family unit.” There is currently no legal authority regarding whether or not a married couple can be treated as two separate "family units" which can be entitled to two separate homestead property tax exemptions. The Attorney General of Florida has opined that financial co-dependence is an important factor. However, the courts have also looked at the couple’s relationship status.
In practice, some Property Appraisers automatically deny dual homestead exemptions to all married couples. They should however contact the couple to obtain more information about their finances and, perhaps, their living arrangements before revoking the exemption.
If your tax exemption has been revoked, feel free to contact Florida Homestead Services as we may be able to help!