Often times homestead can be confusing. Add on to the issue of Florida homestead a divorce, a marital settlement agreement, a second spouse, and a life estate, and the situation becomes very complicated. In the case of Friscia_v._Friscia, the Florida probate court and the Florida Second District Court of Appeal encountered a family situation involving all of these things, and did a great job of clearly articulating how their decision was reached.
The Facts of Friscia
In this case, Nora (Second Wife) is the surviving spouse of Vincent J. Friscia (Decedent), and the personal representative of Decedent’s estate. Robin Friscia is Decedent’s former wife (Former Wife) and mother of Decedent’s two kids, Nicholas and Thomas.
Decedent and the Former Wife divorced in 2008. As part of the divorce, the couple entered into a marital settlement agreement (“MSA”) which was incorporated into a final judgment. The MSA provided for the division of the Florida homestead. The MSA granted the Former Wife exclusive use and possession of the home until the parties’ youngest child graduated from high school. At that point in time, the marital home was to be listed for sale and the proceeds divided equally (50/50) between the parties. The Former Wife also got the option to buy out the Decedent’s interest in the home at any time until it was sold, for one-half (1/2) of fair market value.
Decedent died in 2011, while married to his Second Wife. When Decedent died, his son Nicholas was still in high school, and both sons were living in the former marital home with Decedent’s Former Wife. Decedent’s son Thomas asked the Florida probate court to determine the homestead status of the former marital home. Thomas claimed that the former marital home was Decedent’s homestead, and that title to Decedent’s interest in the property inured to Decedent’s sons and to Nora, the Second Wife.
Why is the homestead status important?
The Florida constitution provides:
§ 4. Homestead; exemptions
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, . . . the following property owned by a natural person:
(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon . . . ; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family;
. . . .
(b) These exemptions shall inure to the surviving spouse or heirs of the owner.
Homestead property is not a part of a Decedent’s estate, and therefore a personal representative does not have jurisdiction over the homestead. When a Florida decedent dies intestate, the surviving spouse takes a life estate with a vested remainder to the lineal descendants. To learn everything you ever wanted to know about Florida homestead, read the Complete Guide to Florida Homestead.
The Florida Probate Court Determines Decedent’s Interest Is Entitled to Homestead Protection
The Florida probate court, over the Second Wife’s objection, determined that Decedent owned the marital home as a tenant in common with the Former Wife, and that Decedent’s ½ interest was entitled to homestead protection. The Florida probate court ruled that the Florida homestead exemption inured to the Second Wife as a life estate with a vested remainder in Decedent’s sons as lineal descendants. The result of this ruling was that the Former Wife and the Second Wife each owned a one half interest in the former marital home as tenants in common, with the second wife having a life estate. Holders of life estates are generally entitled to live in the property for life, and when they die, the remaindermen get the property. But, when the Second Wife attempted to gain entry to the property and “exercise her right in the life estate,” Decedent’s son refused the Second Wife entry and the police escorted her from the property. Why, if the Second Wife had a life estate in the property, did she not get to use it? Because of the MSA between Decedent and the Former Wife.
The Divorce Agreement renders the Second Wife’s Life Estate in the Florida Homestead Useless
Remember, the MSA granted the Former Wife exclusive use and possession of the home until the parties’ youngest child graduated from high school. At that point in time, the marital home was to be listed for sale and the proceeds divided equally (50/50) between the parties. The Former Wife also got the option to buy out the Husband’s interest in the home at any time until it was sold, for one-half (1/2) of fair market value.
The Florida appellate court explained why the divorce agreement did not operate as a waiver of Decedent’s homestead rights, and why the Second Wife did not get to exercise her life estate.
The Divorce Did Not Transfer Decedent’s Florida Homestead Interest
First, the final judgment of dissolution between the Decedent and the Former Wife did not operate to transfer Decedent’s interest in the former marital home. The Decedent’s interest in the home retained its homestead protection because the Decedent’s sons, whom the Decedent still supported financially, continued to live on the property. The Florida Constitution does not require that the owner claiming homestead exemption reside on the property; it is sufficient for the owner’s family to reside on the property.
No Waiver of Decedent’s Florida Homestead Protection in the Divorce Agreement
Second, there was no waiver of Decedent’s homestead protection in the MSA. The MSA contained “mutual release” provisions where the parties released each other from all claims or demands, but these releases waived any rights either had in the property of the other – not their homestead rights in their own property. The MSA also directed that the former marital home be sold and the net proceeds divided when the youngest son graduated from high school. The Florida appellate court noted that while a spouse can waive homestead rights in his own property by contracting to take action inconsistent with those rights (such as agreeing to sell the marital home and pay any outstanding judgments out of the husband’s share of the proceeds), the Decedent in this case did no such thing.
Finally, as to the Second Wife’s rights as a life tenant, the Florida homestead status afforded to the Decedent’s interest in the former marital home did not negate to terms agreed to in the MSA. The MSA was binding on Decedent and his heirs. If Decedent had lived, Former Wife would have been entitled to exclusive use and possession, and would have been required to sell the marital home and divide the proceeds unless the Former Wife exercised the option to buy out Decedent’s interest. Unfortunately for the Second Wife, she has a life tenancy in decedent’s interest in name only.
Why Does the Second Wife Care if the Property is Homestead?
If the Second Wife had been successful in arguing that the former marital home was not Decedent’s homestead, the Second Wife could have possibly used the value of the former marital home to calculate her elective share, and also could have controlled the former marital home as an asset of the estate. The Second Wife would still likely have been bound by the MSA.