§732.401(1) further states that “[i]f not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the lineal descendants in being at the time of the decedent’s death per stirpes.” However, the spouse may also make an election “to take an undivided one-half interest in the homestead as tenants in common, with the remaining one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes,” instead of taking the life estate.50, When an individual has no spouse or minor children, he or she is free to devise the homestead property anyway he or she pleases.51 Conversely, when an individual is survived either by a spouse or minor child(ren), then the property is not subject to devise and will pass as intestate property (meaning that the sole surviving spouse will become the sole owner52 if there are no descendants, or the surviving minor child(ren) will become the sole owner if there is no surviving spouse).53. For example, if Donna takes a life estate in blackacre while qualifying for the homestead creditor exemption and grants Ed and Frank equal remainder interests, Ed and Frank’s creditors can potentially take their remainder interests in blackacre. 57 Fla. Stat. 2d 659 (1946); Wittock v. Ramponi, 446 So. Legal Disclaimer: The materials within this web site are for informational purposes only. §196.041 states that a life estate is considered “equitable title to real estate” and may, therefore, qualify for the homestead tax exemptions.10 Section 196.031(1)(a) divides the application of the $25,000 exemption of co-owned property into two categories: 1) property that is owned as tenants by the entirety or joint tenants with right of survivorship, and 2) all other types of co-owned property. Any co-owner of property held as tenants by the entirety, joint tenants with right of survivorship, or a life estate may use the entire amount of the $25,000 tax exemption and apply the SOH tax cap to the entire value of the property. Joint Tenants with Right of Survivorship. Chuck’s proportionate interest in blackacre is $30,000 ($90,000 X 1/3). As for the remainderman, the devise and descent rules do not apply because the remainderman, under current Florida law, do not have a present possessory interest necessary to receive the homestead protections. Fla. Const. 21 Remember the remainderman cannot qualify for homestead and, therefore, cannot use the $25,000 tax exemption or the SOH tax cap. Conclusion The actual name of a joint tenancy is "joint tenancy with right of survivorship. Const. §689.15 (2011) (unless it is a married couple acquiring property). There is no one-size-fits-all form of ownership, instead co-owners must evaluate their situation and determine which form allows them to accomplish the most and at what expense. 17 Excluding the application of the $25,000 homestead tax exemption. ~ From the Rules Regulating The Florida Bar, The American Influence on International Commercial Arbitration: Doctrinal Developments and Discovery Methods. 32 However, a married couple can own property as tenants in common or as joint tenants with right of survivorship instead of as tenants by the entirety as long as they use the proper language designating that form of ownership. 2d 19 (Fla. 3d D.C.A. See Kozacik v. Kozacik, 157 Fla. 597, 26 So. This year, whiteacre’s value has doubled (100 percent value increase); however, because Chuck qualified for homestead and still qualifies for homestead, the assessed value for ad valorem tax purposes cannot exceed a three percent increase. . X, §4(a) (2010). • Devise and Descent, Tenants by the Entirety — The rules regarding devise and descent of transfer restricted homestead property do not apply to property owned as tenants by the entirety.56 T his is because at the death of one spouse, property owned as tenants by the entirety passes to the surviving spouse automatically, outside of probate — therefore, there is no devise or descent of the homestead property. The results would be the same even if the three owned the property as joint tenants with right of survivorship. Instead, the title will be considered tenants in common. 3/3 (Abby and Ben’s interest) X $90,000 (original value) = $90,000 assessed value X 3% (SOH tax cap) = $92,700 assessed value. Instead, the co-owner’s interest in the transfer restricted homestead property must pass to his or her surviving spouse and/or minor child(ren) as designated by law. 2001); Thompson v. Laney, 766 So. VII, §6 states that “[e]very person who has the legal or equitable title to real estate and maintains thereon the permanent residence of the owner, or another legally or naturally dependent upon the owner, shall be exempt from taxation thereon. M.D. Chuck can only claim $20,000 of the $25,000 exemption because he cannot exceed the value of his proportionate interest. 2d 1111 (Fla. 4th DCA 1995), where ownership is defined as joint tenants with right of survivorship, a creditor of one of the joint tenants may attach that joint tenant’s portion of the property to recover that joint tenant’s individual debt, whereas when property is held as tenants by the entireties, only the creditors of both spouses, jointly, may attach the TBE property. Fisherman’s Wharf Realty Ltd., 821 So. In the preceding year, blackacre had an assessed value of $90,000; this year its assessed value is $180,000. 2d 1018, 1020 (Fla. 2001) (“[t]his court has long emphasized that the homestead exemption is to be liberally construed in the interest of protecting the family home. 2d 23, 27 (1959)). Joint accounts and land that transfer in such a way do not form part of the deceased’s estate and are not subject to probate fees. §193.155(3)(a) (2011). Transmission of the information in this web site is not intended to create, and receipt does not constitute, an attorney-client relationship. ), modified, Tullis v. Tullis, 360 So. The Court held that “this language [in the Constitution] does not restrict the type of interests in real property a person may acquire or how a person may title his or her property. Fla. 2010); In re Hildebrandt, 432 B.R. 34, 34 (Oct. 2003). To determine if and how the homestead creditor exemption applies to life estates and remainder interests, the following questions must be addressed: 1) whether individuals with fractional ownership in time can claim the homestead creditor exemption, and if so 2) which of the co-owners qualify for the homestead creditor exemption. Three percent (3%) of the assessment for the prior year. 1995) (“A unique aspect of a tenancy by the entirety is that each spouse is ‘seized of the whole or the entirety, and not of a share, moiety, or divisible part.’” (quoting Bailey v. Smith, 103 So. Sole Ownership is the simplest form of real estate ownership and is generally held by unmarried individuals or married individuals who wish to assume sole title in non-homestead real property for investment purposes. 3 A surviving spouse or co-owner immediately becomes the sole owner of the property when the other spouse or co-owner dies. The right of survivorship entitles a … art. To create a legal quitclaim deed for joint tenants with rights of survivorship under Florida law, you'll need to make sure the document contains the right language. 1985) (held “that a partition action is not available to an owner of a life estate seeking to partition against remaindermen”); Barden v. Pappas, 532 So. 18 See also Fla. Admin. 2d 727, 729 (Fla. 1969) ( quoting Anemaet v. Martin-Senour Co., 114 So. If parents and their child title property as joint tenants with right of survivorship and the child qualifies for the homestead tax exemption, then he or she will be able to use the full $25,000 tax exemption and apply the SOH tax cap to the entire value of the property. art. 24 For a detailed discussion outlining the specific requirements of each condition, see Barry Nelson & Kevin Packman, Florida’s Unlimited Homestead Exemption Does Have Some Limits, Part I, 77 Fla. B. J. 2d 1110 (Fla. 4th D.C.A. The attorneys handle both contested and uncontested Florida probate, guardianship and trust matters in Fort Lauderdale, Florida; Palm Beach, Florida; Boca Raton, Florida; Miami, Florida; Tampa, Florida; Naples, Florida; Fort Myers, Florida; Sarasota, Florida; and throughout the State of Florida. art. Chuck’s proportionate interest in blackacre is $20,000 ($60,000 X 1/3). This is one of the most popular ways in which property can be co-owned in Florida. 1972); see also Chapman v. Chapman, 526 So. To illustrate this, assume that Abby, Ben, and Chuck own blackacre as tenants in common, each with a 1/3 interest: 1) Chuck qualifies for the homestead tax exemption and the SOH tax cap. 7 Fla. Stat. Co-owners must pay particular attention to how they title their property and their percentage of ownership in order to maximize creditor protection and exemption from taxes. 16 Fla. Stat. Pursuant to the Florida Constitution, in order to qualify for the homestead creditor exemption, three conditions must be satisfied: 1) acreage limitations, 2) residency requirements, and 3) ownership requirements.24 Provided all three of these conditions are satisfied, creditors of the person claiming the homestead creditor exemption will not be able to force sale of or place a lien on the homestead property.25 This article now examines how co-ownership of property affects the homestead creditor protection. 37 Except for taxes and obligations arising from the purchase, improvement, repair, or labor related to the property. Tax Exemptions For example, Abby, Ben, and Chuck own whiteacre as joint tenants with right of survivorship. art. practice in the areas of Florida Probate Litigation, Florida Trust Litigation and Florida Guardianship Litigation. To create a joint tenancy, clear language indicating that intent must be used – e.g. Therefore, even though whiteacre is now worth $180,000, Abby, Ben, and Chuck would only be responsible for taxes on $92,700.17 W hen home values are skyrocketing, the SOH tax cap can save a significant amount of money on taxes. §193.155(3)(a) (2011), such as by operation of law under Fla. Stat. The Florida Constitution provides this tax-saving exemption on the first and third $25,000 of the assessed value of an owner/occupied residence. Id. The warranty deed to the house states that Mr. De Rosa and his mother own it as “joint tenants with full right of survivorship and not as tenants in common.” At the time of the conveyance, Mr. De Rosa … To adopt [otherwise] would create two distinct definitions of homestead; one definition under subparagraphs (a) and (b) of section 4, and another definition under subparagraph (c) concerning the devise of the homestead.”). When property is held as joint tenants with right of survivorship, an owner’s interest in the property passes to the surviving tenants upon the owner’s death. art. Therefore, when a property owner qualifies for the homestead tax exemption under §6,14 the most his or her property value can increase for ad valorem tax purposes is three percent a year. 919, 939-43 (1988). 34, 34 (Oct. 2003). Provided all three qualify for the homestead creditor exemption, whiteacre will be exempt from the individual creditors of Abby, Ben, and Chuck. Florida offers many benefits to property owners who qualify for homestead. Any co-owner of property held as tenants by the entirety, joint tenants with right of survivorship, or a life estate may use the entire amount of the $25,000 tax exemption and apply the SOH tax cap to the entire value of the property. See Moss v. Estate of Moss, 777 So. 28 Sitomer v. Orlan, 660 So. Read 1 Answer from lawyers to Changing deed to Joint Tenants with right of survivorship (homestead defaults to Tenants in common since not specified). For example, assume Abby, Ben, and Chuck own whiteacre as joint tenants with right of survivorship, and Chuck lives on whiteacre with his family. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. 36 Havoco of Am., LTD v. Hill, 790 So. This long form of wording may be especially appropriate in those jurisdictions which use the phrase "joint tenancy" as synonymous with a tenancy in common. 2008). This article examines the effects of owning property as tenants by the entirety, tenants in common, joint tenants with right of survivorship, and with life estates. If a Florida resident acquires property as a joint tenant with rights of survivorship while he has a minor child and lives in the primary residence, the property will not be deemed the decedent’s homestead, as it passes entirely at the time of his death to the … 1962) (stated that a person “could claim exemption in whatever interest she has in the property as her homestead”); Souther Walls, Inc. v. Stilwell Corp., 810 So. 2/3 (Abby and Ben’s interest) X $90,000 (original value) = $60,000 assessed value X 3% (SOH tax cap) = $61,800 assessed value. Consequently, how does co-ownership of property impact the three kinds of homestead? At the death of one joint tenant the heirs of the joint tenants or the beneficiaries under the last will and testament are able to inherit the property. Thus, the life estate holder has 100 percent of the current possessory interest permitting the life estate holder to use the entire exemption amount (provided, of course, it does not exceed the value of the property).11 The co-owner with the remainder interest would not be able to qualify for any homestead tax exemptions.12. This article now examines how co-ownership of property affects these homestead tax exemptions. Id. 2d 1111, 1113 (Fla. 4th D.C.A. 2002) (the constitution “does not designate how title to the property is to be held and it does not limit the estate that must be owned, i.e., fee simple, life estate, or some lesser interest”); see also Callava v. Feinbers, 864 So. • Life Estates and Remainder Interests — Individuals may also take title to property in a manner that divides ownership into present and future interests. In most states, the co-owners may simply write “Joint Tenants with Right of Survivorship” or the the abbreviation “JTWROS” on the deed by their names to create a legally binding joint tenancy with right of survivorship. 2011). The assessed value for ad valorem tax purposes will be $121,800: • Abby and Ben’s interest qualify for the homestead tax exemption; therefore, their interests receive the SOH tax cap and cannot be increased by more than three percent. Both the trial court and the Second District Court of Appeals found that the property was not homestead property of Mr. DeRosa when it was jointly purchased with his mother, as Mr. DeRosa’s property interest ceased upon his demise, and his mother, Harriet, became the sole owner of the property. This is not the case in Texas. If parents and their child title the property as tenants in common, they need to keep in mind that the child’s ownership percentage will determine how much of the $25,000 tax exemption may be applied and how much of the property value will receive the SOH tax cap. 2) Blackacre has an assessed value of $60,000, and Chuck is the only co-owner who qualifies for the homestead tax exemption. $120,000 + $30,900 = $150,900 assessed value. The “survivor” of the joint owner automatically owns 100% of the asset when the other joint owner passes away. Internet users and readers should not act upon this information without first seeking professional legal counsel. When the life tenant qualifies for the homestead creditor exemption, the property is still protected from the life tenant’s creditors, but it is not safe from the remainderman’s creditors. 34 See Julia v. Russo, 984 So. VII, §4(d) provides: (d) All persons entitled to a homestead exemption under Section 6 of this Article shall have their homestead assessed at just value as of January 1 of the year following the effective date of this amendment. 41 Ben and Chuck would each receive one-third of the net proceeds from the forced sale. N.D. Fla. 2010). If a deed to real estate says “Fred Jones and Bill Jones,” the title will not be considered as survivorship. However, a co-owner holding a life estate has a present possessory interest in the property, and the co-owner with the remainder interest has a future interest with no present right to possess the property. §197.122(1) (2011) (“All owners of property are held to know that taxes are due and payable annually and are responsible for ascertaining the amount of current and delinquent taxes and paying them before April 1 of the year following the year in which taxes are assessed.”). Instead, homes may be owned in a variety of different forms, and in a down economy in which banks have stricter lending policies, co-ownership of property becomes even more common. Share List What is the FLORIDA HOMESTEAD EXEMPTION: All legal Florida residents are eligible for a Homestead Exemption on their homes, condominiums, co-op apartments, and certain mobile home lots if they qualify. Parents need to know that if they place a child’s name on the deed and that property is not the child’s homestead for creditor protection purposes, then that property is subject to the child’s creditors. 45 See notes 35 and 36 and accompanying text; see also Litman, An Update on the Legal Chameleon: Florida’s Homestead Exemption and Restrictions, 40 U. Fla. L. Rev. • Tenants in Common and Joint Tenants with Right of Survivorship — When multiple unmarried individuals buy property intending to be co-owners, the property is usually held as tenants in common or as joint tenants with right of survivorship.32 Unless specific language is used indicating “survivorship rights,” tenants in common is the default form of co-owned property in Florida.33 When property is owned as tenants in common, each co-owner owns an interest in the property and, unless specifically stated otherwise, a presumption exists of equal ownership.34 Therefore, two co-owners would be presumed to own the property with each having a 50 percent interest; however, one owner could have a 99 percent interest, while the other owner has a one percent interest as long as they specify these interests. Instead, it restricts a person’s attempt to devise property he or she owns when homestead status has attached to that property.” Id. 919, 942-43 (1988). However, in no situation can the $25,000 tax exemption amount exceed the total value of the property. Alienation, Devise, and Descent If you want to be able to avoid Florida probate court, then the interest must be … Therefore, it is extremely important to keep ownership percentages in mind when titling property as tenants in common if the co-owners want to maximize the application of the Save Our Homes tax cap. 26 Beal Bank, SSB v. Almand and Associates, 780 So. 2d 777 (Fla. 1971). 39 If a co-owner of property titled as joint tenants with right of survivorship breaks one of the unities creating that form of ownership, such as a conveyance to a third party, the property loses its survivorship status as to that portion and defaults as being held as tenancy in common. Business partners or heirs of an estate can jointly own real estate. 55 Fla. Const. These benefits include a reduction in the assessed value of the homestead and a limit on the increase in property value of the homestead for ad valorem tax purposes. 54 Holden v. Estate of Gardner, 420 So. X, §4(c). 2d 1378, 1379 (Fla. 2d D.C.A. Florida law recognizes a type of property ownership called "joint tenancy," and a joint tenancy can be created by quitclaim deed. 5 Fla. Stat. Under this type of ownership, a person may take a life estate, which means he or she has a present possessory interest in the property and is entitled to all ordinary uses of the property until death.42 However, ordinary use does not permit a life tenant to do anything that injures the future interest in the property. ’ We believe that this refers to homestead as it is otherwise used in section 4. F.S. 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