Same sex marriage (SSM) is legal in all 50 states as of June 26, 2015. Now what? [If you want to read the landmark decision of the US Supreme Court making SSM legal everywhere in the U.S., here's a link: Obergefell v. Hodges.]
For Florida practitioners, there are four obvious areas in which the legalization of SSM will have an immediate and practical effect: family law, estate planning, real property, and personal injury.
1. Family Law: where there are marriages, there will also be divorces. Practitioners have been fashioning SSM "divorces" for years through contracts but the remedy was woefully insufficient. The big change here from the parties' perspective is the entitlement to the benefit of the divorce code. The big change coming in family law practice is a revision of pleadings and forms such as prenuptial agreements to refer properly to the spouses in personal pronouns and appellations. The general consensus developing is that the proper manner to refer to the parties to a SSM are Husband/Husband or Wife/Wife. [Side note; There's about a million other variations on this issue having to do with gender referencing but that is not what this blog post is about and many other more learned and nuanced sources exist on the internet--google it]. The use of the Husband/Husband or Wife/Wife appellations will cause some need for careful drafting though since most programs or forms rely on the Husband/Wife configuration to keep track of each party in a document. So if your forms are built on that paradigm, you will have to be extra careful when using them to draft documents for a SSM-divorce or prenuptial agreement.
2. Estate Planning: Estate planning practitioners have also been writing same sex documents for years. The real change here is not necessarily the forms but the rights and privileges parties to SSM will now be entitled to claim. For example, the surviving spouse of a SSM will now be entitled to claim pretermitted spouse status, elect to take the spousal share, inherit by intestacy, be entitled to all of the rights of a surviving spouse with respect to homestead including an election to take the spouse's joint tenant's share in the homestead, be entitled to be Personal Representative in an intestate estate, and be entitled to claim personal property exemptions for personal property, vehicles and other tangibles. The HUGE impact the legalization of SSM will have on estate planning for same sex couples is really not quantifiable. Check out my website for answers to Frequently Asked Questions about Probate and Estate Planning.
3. Real Property: Just as with family law and estate planning, documents will have to be revised; however, most real property practitioners have been writing deeds and other instruments for same sex couples for years. Here again the HUGE change is the rights and privileges the SSM couple will now be entitled to claim. First, having the right to own property as tenants by the entireties is a really big deal. Why? Because real property held as tenants by the entireties is very special, and immune from all efforts of collection unless the judgment holder has a judgment against both spouses. This is really the only change for real property that matters (excluding homestead as addressed above). The big change in practice will be remembering to acknowledge the SSM in our deeds. Best practice has always been to reference the marital status of both grantor and grantee in every deed (so that a title examiner down the road can exclude homestead and/or tenants by the entireties issues from a transaction). Now more than ever, this best practice will be paramount since before the homestead and tenants by the entireties was only an issue when the grantor or grantee was a man and a woman. Now any combination of genders could be a married couple so what before was a best practice is now an absolute necessity in my opinion. I wrote about the history of homestead in Florida here. Check out my website for answers to Frequently Asked Questions about real estate.
4. Personal Injury: Parties to a SSM will now enjoy the same spousal rights in personal injury and wrongful death cases as everyone else. Where before the uninjured partner in a same sex couple was not entitled to sue for loss of consortium, etc, a legally married same sex couple will enjoy these rights.
Many other practice areas will be affected by this epic shift in the landscape and my thoughts above are directed primarily to areas of my practice (1-3 above) in which I anticipate immediate changes. Please note that I am not interested in a debate about SSM, or anyone's opinion on SSM so please do not bother commenting as I will be very liberal with the delete button. That said, I would love to read comments about the effect of this case on your practice.
Happy Wednesday!
Julie
Isler & Sombathy, P.A.
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Showing posts with label Homestead. Show all posts
Showing posts with label Homestead. Show all posts
Wednesday, January 20, 2016
Wednesday, October 2, 2013
Homestead, Will Contests, and Car Titles: The Last of Smokey Susan
Last month, I shared the sordid tale of one of my least favorite clients, Smokey Susan. Susan's case involved numerous aspects of Florida probate law, some of which I addressed in this post, here, and here.
In addition, the results of Susan's case were directly affected by Florida Homestead law. Basically, Joe could not leave his interest in his homestead (really 100% but swindled by Susan for 50%) to anyone other than Tami because Tami was under 18 at the time of Joe's death. For a more in depth review of Florida Homestead law, check out this post.
The thing which ultimately tore it for me with Susan was the shenanigans she pulled with the title to the Cadillac. For more information about how to transfer a title to a car after the owner dies without probate, check out this post.
Lastly, Susan's case involved a will contest. The basics of a will contest were addressed by Faye's Story, Part One, Part Two, and Part Three.
A short epilogue to Smokey Susan's story:
Whatever happened to Joe's remains? Melanie skipped out as soon as she figured out she wasn't getting the Cadillac or the house. Susan did pay for Joe's funeral. But don't give her too much credit for that sole act of decency; she charged Tami's half of the sale proceeds from the homestead with the funeral expense in the guardianship.
Like I said, Susan was a real piece of work.
Cheers, and Happy Wednesday. We have officially made it to the downhill side of the week!
Julie
Copyright 2013 Julie Ann Sombathy All Rights Reserved
In addition, the results of Susan's case were directly affected by Florida Homestead law. Basically, Joe could not leave his interest in his homestead (really 100% but swindled by Susan for 50%) to anyone other than Tami because Tami was under 18 at the time of Joe's death. For a more in depth review of Florida Homestead law, check out this post.
The thing which ultimately tore it for me with Susan was the shenanigans she pulled with the title to the Cadillac. For more information about how to transfer a title to a car after the owner dies without probate, check out this post.
Lastly, Susan's case involved a will contest. The basics of a will contest were addressed by Faye's Story, Part One, Part Two, and Part Three.
A short epilogue to Smokey Susan's story:
Whatever happened to Joe's remains? Melanie skipped out as soon as she figured out she wasn't getting the Cadillac or the house. Susan did pay for Joe's funeral. But don't give her too much credit for that sole act of decency; she charged Tami's half of the sale proceeds from the homestead with the funeral expense in the guardianship.
Like I said, Susan was a real piece of work.
Cheers, and Happy Wednesday. We have officially made it to the downhill side of the week!
Julie
Copyright 2013 Julie Ann Sombathy All Rights Reserved
Tuesday, September 24, 2013
Your Funeral: Who Gets to Direct the Details
Last week I shared the story of an old client, Smokey Susan. Susan originally came to see me because the funeral home would not let her direct the disposition of her ex-husband's remains since there was another person claiming that right, and no clear winner to the dispute.
Susan really had no claim to any right to bury Joe: they weren't married, and the fact that she was the mother of Joe's only child (a minor) was not very persuasive. If no one else had claimed the right to direct disposition, Susan would have been okay. The problem was Melanie's claim that under Joe's will, she had the right to make disposition decisions.
How could the dispute over what to do with Joe's remains have been resolved? The best way to avoid a problem at the funeral home is to execute an Appointment of Agent to Dispose of Bodily Remains. In this document, you can name an agent as well as a successor agent. You can also be as detailed or as nonspecific as you choose.
For example, I have clients who have very specific wishes with respect to burial versus cremation. Along those same lines, many clients have very specific wishes with respect to their place of burial, or the treatment of their ashes.
You can also outline the type of service, if any, you want held in addition to other details. As examples, I will share excerpts out of two of my favorite "directives":
I. "I am to be buried in the family plot at the farm in Alabama, in the space between my mother and grandfather and I am to be dressed in the blue silk kimono my second husband brought me back from the War."
II. "I do not want any type of service at the funeral home, or viewing. Please bury me next to my wife, and have the preacher give a graveside service for family only. On the following Saturday night, host a night in my honor at American Veterans Lodge # and open a $500 tab for my friends."
Both of these people are gone now, and their agents did as instructed.
I strongly recommend this document for couples when their children are a "Brady Bunch" or if their children fight and argue. Often, deep resentments surface after the death of a loved one, and for some reason it starts at the funeral home. I've had many a phone call from a distressed widow or widower who has found out at the funeral home that the stepchildren have very different ideas about where their deceased parent should be buried. The strangest one was the case where the deceased had divorced the mother of the stepchildren 30 years prior, but the stepchildren wanted him buried next to their deceased mother (his ex-wife of 30 years) her rather than his current wife of 20 years!
Another way to avoid this situation is to purchase a prepaid funeral plan. This allows you to decide many of the details in advance, and pay for it.
Many people think that an instruction in their will regarding their burial will suffice, and fifty years ago this was true; however, the will has to be admitted to probate and the personal representative appointed before the personal representative has the legal authority to carry out your wishes. Consider the time involved in finding an attorney, an appointment, preparation of the pleadings, and waiting on the court to enter an order and issue Letters of Administration. Even in the best of times, you could be facing a delay of 2-4 weeks, and that is only if everyone involved is on the same page. If there is a dispute about the will, or there is no will and a dispute among the heirs about who should serve as personal representative, the delay could be months in duration. That's a long time to wait.
Julie
Copyright 2013 Julie Ann Sombathy All Rights Reserved
Susan really had no claim to any right to bury Joe: they weren't married, and the fact that she was the mother of Joe's only child (a minor) was not very persuasive. If no one else had claimed the right to direct disposition, Susan would have been okay. The problem was Melanie's claim that under Joe's will, she had the right to make disposition decisions.
How could the dispute over what to do with Joe's remains have been resolved? The best way to avoid a problem at the funeral home is to execute an Appointment of Agent to Dispose of Bodily Remains. In this document, you can name an agent as well as a successor agent. You can also be as detailed or as nonspecific as you choose.
For example, I have clients who have very specific wishes with respect to burial versus cremation. Along those same lines, many clients have very specific wishes with respect to their place of burial, or the treatment of their ashes.
You can also outline the type of service, if any, you want held in addition to other details. As examples, I will share excerpts out of two of my favorite "directives":
I. "I am to be buried in the family plot at the farm in Alabama, in the space between my mother and grandfather and I am to be dressed in the blue silk kimono my second husband brought me back from the War."
II. "I do not want any type of service at the funeral home, or viewing. Please bury me next to my wife, and have the preacher give a graveside service for family only. On the following Saturday night, host a night in my honor at American Veterans Lodge # and open a $500 tab for my friends."
Both of these people are gone now, and their agents did as instructed.
I strongly recommend this document for couples when their children are a "Brady Bunch" or if their children fight and argue. Often, deep resentments surface after the death of a loved one, and for some reason it starts at the funeral home. I've had many a phone call from a distressed widow or widower who has found out at the funeral home that the stepchildren have very different ideas about where their deceased parent should be buried. The strangest one was the case where the deceased had divorced the mother of the stepchildren 30 years prior, but the stepchildren wanted him buried next to their deceased mother (his ex-wife of 30 years) her rather than his current wife of 20 years!
Another way to avoid this situation is to purchase a prepaid funeral plan. This allows you to decide many of the details in advance, and pay for it.
Many people think that an instruction in their will regarding their burial will suffice, and fifty years ago this was true; however, the will has to be admitted to probate and the personal representative appointed before the personal representative has the legal authority to carry out your wishes. Consider the time involved in finding an attorney, an appointment, preparation of the pleadings, and waiting on the court to enter an order and issue Letters of Administration. Even in the best of times, you could be facing a delay of 2-4 weeks, and that is only if everyone involved is on the same page. If there is a dispute about the will, or there is no will and a dispute among the heirs about who should serve as personal representative, the delay could be months in duration. That's a long time to wait.
Julie
Copyright 2013 Julie Ann Sombathy All Rights Reserved
Friday, September 20, 2013
A Tale of a Terrible Client--Smokey Susan
CAVEAT: Even though a lot of details are public record, the names and relevant identifying details of all persons, as well as some of the facts, in this post have been altered in order to maintain any potential attorney-client privilege.
Once I had a client named Susan. She was a real piece of work. Don't cry for her. She totally doesn't deserve it.
Once I had a client named Susan. She was a real piece of work. Don't cry for her. She totally doesn't deserve it.
Susan came to see me about her ex-husband, Joe. She was trying make arrangements for Joe’s
funeral, and claimed that a "floozy" bartender named Melanie was trying to take
control. Why did Susan care? Susan had a young daughter, Tami. Susan's ex-husband, Joe, was Tami's adoptive father. Susan and Joe were
married and divorced two times. Tami
came along in between the first and second marriage, and Joe adopted Tami when
she was about 5. No one had the authority to dispose of Joe's remains: he wasn't married, had no living relatives
other than Tami, and Tami was not 18.
At first, Susan presented very sympathetically. Joe was a drunk, horrible person. The second divorce came about because Joe had
molested Tami. Susan just wanted to
protect Tami's interests, and Melanie at the dive bar down the street from his
home was trying to steal Joe's estate from his young child. Melanie claimed to have a will, but she would
not provide a copy to Susan or to me.
Because Melanie had a will (she did show it to the funeral home) and
because Susan was also claiming the right to dispose of Joe's remains as Tami's
parent, the funeral home literally put Joe on ice and told Melanie and Susan to
come back with a court order.
The first thing I did was file a Caveat for Susan on behalf
of Tami in the probate court records on Joe's estate. The Caveat insured that no one could do
anything in Joe's estate without first giving Susan a 20 day notice. Sure enough, Melanie filed a petition to
administer Joe's estate just a few days later, and had to serve Susan. I filed a motion to dismiss the petition, as
well as an answer and counter-petition to invalidate the proffered will as the product of undue influence.
In other words, I filed a will contest on Susan's behalf. Last, I filed
a petition to appoint Susan personal representative of Joe's intestate estate.
The only assets of any value belonging to Joe were a half
interest as a co-tenant in his home, the contents of the home, and a
Cadillac. Susan owned the other half of
the home, which was purchased by them during the second marriage. By the time we got all of the initial motions
and such before the court both Susan and Melanie had gone into the home and
taken items of personal property and Melanie had taken possession of the
Cadillac and was driving it (presumably with no insurance). Of course, Susan
did not tell me before the hearing that she had taken things out of the
home. By contrast, I had heard
extensively in person, on the phone, and in writing about Melanie having that
Cadillac.
A side note about Susan:
she was a heavy smoker. We had to
schedule her appointments so that no other clients were present so I could
leave the door to my office open while meeting with her. Imagine the worst dive
bar you've ever been in, multiply by 100, and then imagine that stink on one
person. That will give you an idea of
how bad she smelled. She was like Pigpen
from Charlie Brown, with a haze of smoke, nicotine and tar buzzing around her
at all times like an evil, migraine inducing force field. Susan was a letter writer. She would call me or come in, and then
immediately follow up with a ten page letter which was nothing but a ramble and
regurgitation of the conversation.
Invariably, the letter was trying to get me to agree with whatever
harebrained idea she had hatched to get the Cadillac from Melanie. Also invariably, the letter would smell so
bad we would have to open it, and HANG IT IN THE OUTBUILDING BEHIND OUR OFFICE
to air it out. It would still stink
afterwards, but it would be bearable. The letter would arrive, and the funk
would precede it by 10 feet, minimum. I
never saw Susan when she didn't reek, have a tissue in hand, and she had at
least one horrifying coughing fit per visit.
She was also actively sick every single time I saw her. She even came to court while she had the
flu. I don't think I'll ever forget this
aspect of the case. Susan was a one woman walking anti-smoking campaign.
Back to the hearing.
The court refused to appoint either party as personal representative and
entered an order that the proceeding was adversary. The court also entered an order prohibiting
either party from removing things from Joe's home, and enjoining Melanie from
driving the Cadillac (but allowing her to maintain custody of it for the time
being). After the hearing, we filed a petition to determine homestead as to
Joe's half interest as a cotenant in the home.
Because Tami was under 18, Joe could not leave his home to anyone else
under the homestead provisions of the Florida Constitution. Opposing counsel (who claimed to be a probate
attorney) thought that Joe's will leaving everything to Melanie trumped Tami's
homestead rights, which could not have been more wrong.
At Susan and Melanie's subsequent depositions, I first
learned that during their second marriage, Joe had executed a will leaving
everything to Susan. The will also provided
that if Susan was dead (which is how she would be treated post-divorce), Susan's
sister was named as personal representative and trustee for Tami's benefit and
Tami was the sole beneficiary of Joe's estate.
Melanie claimed that Joe adopted Tami solely to increase his disability
benefits. According to Melanie, Tami had an ongoing relationship with her
biological father who agreed to the adoption because he would not have to pay
child support. I also learned that a
term of Susan and Joe's divorce was that Susan would deed her half interest in
Joe's home to him, an act which she had thus far failed to do. Melanie also testified that Susan routinely
allowed Joe unsupervised visitation with Tami after the second divorce.
Susan brushed off all of these facts: she admitted letting her daughter visit with Joe after the
divorce (she claimed he was "better"), she said Joe told her she didn't have to deed him that half
interest in his home, she didn't mention the will because she didn't like her
sister and did not want her sister to get control of Joe's estate. All Susan wanted to talk about, ad nauseum,
was that old Cadillac. I have often
wondered if the Cadillac had something valuable hidden in it, considering the
war Susan and Melanie waged over it.
Prior to his death, Joe had taken out a "title
loan" on the car which remained unpaid.
Susan and I discussed her options: she could buy the lien, and we could
file a replevin action and repossess the car to satisfy the lien. Susan listened and understood (her stinky
missives made the fact of her understanding very clear). Instead of buying the loan, Susan went to the
loan company and paid off the lien.
Thus, Susan got possession of the title which she then took to the DMV
and totally misrepresented her relationship to Joe. All she needed was a certified copy of Joe's
death certificate and the original will she didn't like in order to walk into
DMV with the car title and say she was still his wife in order to get the title
put into her name.
Susan showed up at my office and presented the new title as
a fait accompli, expecting a pat on the back for a job well done. This was the beginning of a very rapid end
for me and Susan: she was shocked that I
was not happy with her clever thinking, and I was appalled at her disregard for
my advice and the law. I refused to file
a replevin action for her and instructed her to that she had to immediately
transfer the title back to Joe's name (albeit subject to her lien for the
exonerated title loan). Susan refused to do so.
So, in due course, I terminated our relationship.
Susan went back to the attorney who prepared the
"lost" will (that she didn't like) and an Order Determining Homestead
was entered. Tami never received a
dime. Susan sold the home within about a
year of the order being entered to Tami's biological father. The deed was
signed by Susan showed Susan as a co-owner.
How did she pull off that trick? Melanie dropped out as soon as she
realized she was not getting the house. I was gone. Susan's new attorney did
not know about the divorce agreement and so it looked like Susan owned half and
Joe owned half. She even opened a guardianship for Tami, and represented that
Tami only owned half (and more importantly, failed to tell anyone about her
agreement to deed her half to Joe). Then
in the guardianship, Susan got all the proceeds from the sale (without telling
anyone how the buyer was related to her and Tami) because she claimed to have
been paying the mortgage and maintenance on the home (which was not the case
when I represented her).
What happened to the Cadillac? Well, Susan filed a small
claims action and repossessed the car from Melanie using the fraudulently
obtained car title. She also got a
judgment for costs which Melanie ultimately had to pay. Here again, she got away with this for most
of the same reasons she got away with the house. In addition, Melanie did not have an
attorney, and must not have understood how Susan could only have lied to get
the title.
Why didn't I intervene?
First, I didn't know about it until I went to look at the court records
to write this post. You fire a client
and move on. The last pleading I saw in the probate was the Order granting my
motion to withdraw. Susan sold the home and repossessed the car about a year
later. Second, even if I had known what Susan
was up to, most likely I would not have been able to disclose anything to
anyone in order to bring her lies and machinations to light. In Florida, with very few exceptions, an attorney
is obligated to keep the information obtained through representation of a
client confidential. Attorneys are expected to err in favor of nondisclosure
whenever there is even a question to disclose or not disclose. If I had known
about the misrepresentation in the guardianship about Tami's interests in the
home and the suit against Melanie to repossess the car, I would have at least called
the Bar to get some guidance on my obligations to Susan.
Like I said, Susan was a real piece of work. She has remarried twice in the intervening
years. I could not bear to be within ten feet of her, so I find this fact
particularly astounding. I looked Tami up on the internet recently, and it does
not look to me like Susan had a transformative experience and became an
exemplary parent. Poor Tami, she never had a fighting chance.
Monday, January 7, 2013
2012: The Year in Review
January 2013 is Law On High Heels first birthday!
Looking back, my favorite personal post of 2012 is about my dad, who turned 70 in April. I also wrote a couple of posts on the never ending and annoying topic of "having it all" here and here. My favorite posts on legal topics in 2012 were about homestead law, copyright law and appropriation art, and the GPS decision by the US Supreme Court. Last but not least, the most viewed post on my blog for the year explains how to switch a car title after someone dies without having to see a lawyer.
January is a great time to make resolutions: it is a new year, a fresh start, an identifiable demarcation between the past and the as yet undetermined future. Any day could serve that purpose, but the first day of the new year just works, you know? My resolution is to shake off the gloom of the last quarter of 2012, and move forward with optimism, even when I don't feel it. Everything changes, like it or not, but change does not have to just happen to us.
So, Happy New Year, dear readers. Here's to starting the year out with optimism, even if it is forced at times, and barreling headlong toward the future, no brakes.
Cheers,
Julie
My Website
Copyright 2013 All Rights Reserved Julie Ann Sombathy
Looking back, my favorite personal post of 2012 is about my dad, who turned 70 in April. I also wrote a couple of posts on the never ending and annoying topic of "having it all" here and here. My favorite posts on legal topics in 2012 were about homestead law, copyright law and appropriation art, and the GPS decision by the US Supreme Court. Last but not least, the most viewed post on my blog for the year explains how to switch a car title after someone dies without having to see a lawyer.
January is a great time to make resolutions: it is a new year, a fresh start, an identifiable demarcation between the past and the as yet undetermined future. Any day could serve that purpose, but the first day of the new year just works, you know? My resolution is to shake off the gloom of the last quarter of 2012, and move forward with optimism, even when I don't feel it. Everything changes, like it or not, but change does not have to just happen to us.
So, Happy New Year, dear readers. Here's to starting the year out with optimism, even if it is forced at times, and barreling headlong toward the future, no brakes.
Cheers,
Julie
My Website
Copyright 2013 All Rights Reserved Julie Ann Sombathy
Friday, May 18, 2012
Florida Homestead Law: From the Beginning
Besides the sugar white sands, emerald waters and a population that has a rather inexplicable obsession with monkeys, one of the perks to living in Florida is our homestead law. In order to understand how homestead works, it is easiest to look at the law in the context of how it began. First, you have to know what it is, though.
Homestead protection is available to any real property owned by an individual that is their place of abode (and if temporarily absent, where they intend to return). Inside the city limits, an individual may homestead up to a half acre of contiguous property. Outside city limits, up to 160 acres of contiguous property may be homesteaded. That's pretty much it: the property has to be within the size limitations stated above, and it has to be where you live. Without doing anything else, it is your homestead. There's no form to fill out or registration to make, it just is. In order to get the full benefit of the homestead laws, you do have to take some action (which I will address later on in this post).
One misconception about homestead law is that it makes your homestead inviolate. Not so. If you apply for Medicaid assistance, only the first $500,000 in equity is exempt. If you instruct the Personal Representative of your estate to sell your homestead in your will, then it loses homestead protection. The IRS can always wade in and take it on a federal lien (Federal law trumps state law), a materialman can foreclose a Claim of Lien under the Construction Lien Law, a mortgage holder (if they've gotten the appropriate spousal consent) can foreclose their mortgage, and you can lose your homestead through a tax deed if you don't pay your ad valorem taxes. There's also a chance of losing your homestead status in Bankruptcy if the court perceives that you haven't played by the rules.
In addition, just because property is your homestead, that doesn't mean that judgments or liens against you won't be sitting there to ruin your day. If judgments are recorded against you and you try to refinance or sell your homestead, a title company will not insure the title unless the judgments or liens are satisfied, released, or you go through a process to formally declare the property your homestead. To do this, you have to file a declaration with the clerk of court who then mails notice to all lienholders. A waiting period occurs and if there are no responses, you are done. If a lienholder objects, they have to file a declaratory judgment action to determine the issue. Objections are rare: your property either is your homestead or it isn't. Here's a link to the statute for removing liens before levy, which contains the basic form of the pleadings. If a judgment holder is trying to levy against your homestead, the process for removing liens after levy is different.
So, there it is. Enjoy, especially the ladies. We have a way to go, for sure; but I am never so happy to be living in this day and age than when I look at these old laws.
Julie
My Website
Copyright 2012 All Rights Reserved Julie Ann Sombathy
Homestead protection is available to any real property owned by an individual that is their place of abode (and if temporarily absent, where they intend to return). Inside the city limits, an individual may homestead up to a half acre of contiguous property. Outside city limits, up to 160 acres of contiguous property may be homesteaded. That's pretty much it: the property has to be within the size limitations stated above, and it has to be where you live. Without doing anything else, it is your homestead. There's no form to fill out or registration to make, it just is. In order to get the full benefit of the homestead laws, you do have to take some action (which I will address later on in this post).
So, to the background. Florida homestead law is thought to derive from the influence of Spanish colonial laws and the Civil War. Context is everything right? A little state history: Spain ceded ownership of Florida to the USA in 1819. Florida became a state in 1845. Florida, to our great shame, was a slave holding state. In 1861, Florida seceded from the Union. During the Civil War, Florida was a supplier of salt, cattle, and men to the Confederacy. There were battles fought in Florida. Men went to war, and some of them never returned. At the time, there was no homestead law. The displacement of widows and children by creditors or family members must have been massive. Survival in the 1860's without the support of a husband was a major obstacle for any woman, whether or not she was also a mother.
Florida was readmitted to the Union in 1868 with a new constitution, usually referred to as the "Reconstruction Charter." It was in this version of the Florida Constitution that the first homestead provisions appeared at Article IX. The law protected the homestead from "forced sale" both during a man's life and even after his death. The law also prohibited the "alienation" of the homestead by deed or mortgage without the wife's consent. This consent provision was crucial. Lastly, the law provided that the homestead descended to the wife and/or minor children and prevented the husband from deviating from this distribution by alternate devise in his Will. In case it is bothering you, the gender specific terms used in this post are intentional.
Florida was readmitted to the Union in 1868 with a new constitution, usually referred to as the "Reconstruction Charter." It was in this version of the Florida Constitution that the first homestead provisions appeared at Article IX. The law protected the homestead from "forced sale" both during a man's life and even after his death. The law also prohibited the "alienation" of the homestead by deed or mortgage without the wife's consent. This consent provision was crucial. Lastly, the law provided that the homestead descended to the wife and/or minor children and prevented the husband from deviating from this distribution by alternate devise in his Will. In case it is bothering you, the gender specific terms used in this post are intentional.
Why was the consent provision so crucial and why was it so hard for a widow? At the time the Reconstruction Charter was adopted, Florida did not have a Married Women's Property Act. As hard as it is to fathom today, 150 years ago all of a woman's belongings (as well as the woman herself) became the property of her husband upon marriage. A married woman could not own property: chattel can't own chattel. If not for the social stigma then attached to single parenting or "spinsterhood" I have to think many women would have given a hearty "NO THANKS" to any marriage proposals. Florida was the last of four states to enact a Married Women's Property Act in 1943, almost 100 years after the first one was enacted. Shameful, but not shocking. Florida as a state has not been exactly "forward thinking" on women's rights. Consider that Florida was dead last in ratification of the 19th Amendment to the US Constitution (women's right to vote), a full FIFTY YEARS after the amendment was passed into law. Way to go, Florida legislature. I procrastinate, but dang, that takes the cake and the candles.
So, the homestead law was therefore very important to a widow and her children, protecting them from creditors of the husband as well as the husband during the husband's life. The law also protected the widow and children from the husband's Will, or his family, or his creditors after his death.
The law remained pretty much unchanged until the Great Depression. Many Floridians lost their homes within the first few years of the Great Depression because they could not pay their ad valorem (real estate) taxes. So, the constitution was amended to add an ad valorem tax exemption for homesteads. Originally, the exempt amount was $5,000 of the fair market value. In order to get the benefit of the ad valorem tax exemption, you have to declare your homestead. Your local Property Appraiser's office can clue you in on the specifics. Here's a link to the contact info for all property appraisers in Florida by county. Here's a link to the State's information page on homestead. Here's a link to the current Homestead constitutional provision (Article X, Section 4).
One misconception about homestead law is that it makes your homestead inviolate. Not so. If you apply for Medicaid assistance, only the first $500,000 in equity is exempt. If you instruct the Personal Representative of your estate to sell your homestead in your will, then it loses homestead protection. The IRS can always wade in and take it on a federal lien (Federal law trumps state law), a materialman can foreclose a Claim of Lien under the Construction Lien Law, a mortgage holder (if they've gotten the appropriate spousal consent) can foreclose their mortgage, and you can lose your homestead through a tax deed if you don't pay your ad valorem taxes. There's also a chance of losing your homestead status in Bankruptcy if the court perceives that you haven't played by the rules.
In addition, just because property is your homestead, that doesn't mean that judgments or liens against you won't be sitting there to ruin your day. If judgments are recorded against you and you try to refinance or sell your homestead, a title company will not insure the title unless the judgments or liens are satisfied, released, or you go through a process to formally declare the property your homestead. To do this, you have to file a declaration with the clerk of court who then mails notice to all lienholders. A waiting period occurs and if there are no responses, you are done. If a lienholder objects, they have to file a declaratory judgment action to determine the issue. Objections are rare: your property either is your homestead or it isn't. Here's a link to the statute for removing liens before levy, which contains the basic form of the pleadings. If a judgment holder is trying to levy against your homestead, the process for removing liens after levy is different.
So, there it is. Enjoy, especially the ladies. We have a way to go, for sure; but I am never so happy to be living in this day and age than when I look at these old laws.
Julie
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