Estate Planning and Asset Protection
April 29, 2011
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May 19, 2011

Property In Joint Tenancy Held Not To Be Homestead Property

In a recent Florida appellate decision, Marger v. De Rosa, the Second District Court of Appeals found that a deceased man’s interest in his home, which he owned jointly with his mother, was not homestead property and thus would not pass for the benefit of the man’s two minor children under Florida law.

The man and his mother purchased the home in Largo, Florida and received a deed which stated that the two individuals owned the home as, “joint tenants with full right of survivorship and not as tenants in common.” Years later, when the man died, he left behind two minor children. The mother claimed full ownership in the home with no interest for the two minors.

Article X, section 4(c), of the Florida Constitution provides that, “[t]he homestead shall not be subject to devise if the owner is survived by [a] spouse or minor child.” This is one of the three commonly recognized forms of homestead protection found in the Florida Constitution. However, in this case, the court found that the decedent’s interest in joint tenancy did not qualify as homestead property. Instead, when the man died, his ownership interest in the home ceased to exist and it became the sole property of his mother. The court noted that, had the man outlived his mother, he would have become the sole owner of the property and would then have possessed a homestead interest which the Florida Constitution would have protected for his minor children. Sadly, that was not the facts presented in this case.

It is important to fully understand the legal implications of how one chooses to hold property. One reason someone might be advised to hold property in joint tenancy would be to avoid the time and cost associated with the probate process. Although it is difficult to determine exactly what the man in the De Rosa case was trying to accomplish when he decided to take title to the property in joint tenancy, it seems unlikely that he planned for or desired the outcome which resulted. If probate avoidance was a factor, a well-drafted revocable living trust could have accomplished the same goal without depriving the man’s minor children of a home in which to reside in the event of his untimely death.

Before making the important decisions in life, such as purchasing a home, it is important to talk with an experienced trust, estate planning, and tax planning attorney in order to fully understand the consequences of your actions. The words on a deed, bank account registry, or other legal instrument that establish how one owns and holds their property interest are very important and their legal effect can lead to harsh and unforeseen consequences if not fully understood. If you are confused about how you should own your property, are looking to minimize the time and cost of the probate process, or just need legal advice before participating in a major transaction, contact Ourednik Law Offices to see how we can help you.