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Real Estate Law – Does Death of Spouse Result in Losing of Homestead for Widow?

Attorney

Cuevas, Garcia & Torres, P.A.

Vantage Property Title Company

Andrew Cuevas, Esq. - President e-mail: acuevas@cuevaslaw.com

Tel: (305) 461-9500
Fax: (305) 448-7300

Introduction

Mr. Andrew Cuevas, Esq., is the President of Cuevas, Garcia & Torres, P.A., and Vantage Property Title Company. Cuevas, Garcia & Torres, P.A., provides legal services in the areas of Community Association Law, Real Estate law, and Business Immigration, including title insurance services through Vantage Property Title Company. If you have any questions regarding this article or any other questions, you may contact Mr. Cuevas at (305) 461-9500 or via e-mail at acuevas@cuevaslaw.com. If you are interested in reading previous newsletters, please visit www.cuevaslaw.com, select the icon for Newsletters, and then choose the area of law you are interested in.

Does Death of Spouse Result in Losing of Homestead for Widow?

The Florida Constitutional (Article VII, §6(a)) Homestead Exemption, from real property taxes upon a homestead was explained in Kelly v. Spain, Case No.: 4D14-510 (Fla. 4th DCA, February 25, 2015) . Recognizing the broadly stated goal of the exemption, the District Court of Appeal affirmed the final judgment in favor of the property owner, ordering the tax collector to refund taxes collected with penalties which the assessor asserted were a lien against the property.

The facts of the case was that the property was held by the widow and her now deceased husband. Unfortunately, the widow wife never filed for a homestead exemption though she permanently maintained her residence at the property.  As a result, the tax collect collector asserted that the widow waived her right to claim a homestead.

Reciting the purpose of the homestead protections is "to protect the family" and thus the "stability and welfare of the state," there are three criteria for qualifying for the exemption: (1) the real property is owned by "natural person"; (2) the making or intent to make the real property a permanent residence for the owner or the owner’s family; and, (3) the property is within the size and continuity requirements of the Constitution.  Nevertheless, despite the ability of counties to authorize the automatic application for a homestead tax exemption, there are triggers for application, such as the sale or transfer of the property, the property is not utilized as a homestead, or the status of the owner changes vis a vis the property §196.011 (9)(a) Fla. Stat. (2011).

Statutory and constitutional provisions are not read in the abstract, instead they are construed together, not out of context, "to harmonize the statutes and to give effect to the Legislature’s intent."  As a result, the application provisions of §191.011 must be read together with the "Save Our Homes" provisions in §193.155 Fla. Stat., (2011) which provides that there is no change of ownership for homestead exemption when one spouse dies and the other inherits the property.

Where §196.011 does not define change of ownership, §193.155 does by excluding transferees between spouses, including to a surviving spouse, and even if only one of the spouses applied for the exemption.  As a result, the "applicant" for an exemption for property held by tenancies by the entirety is both spouses, and the "cease to use" threshold removing the exemption is when both spouses cease to use. Therefore, the surviving widow does not have to re-file for the homestead exemption, even if the title may have technically changed due to the passing of the deceased spouse.

This article is solely a partial explanation of all the issues related to the topic of this newsletter, and is not to be considered legal advice. All persons who may be affected by these issues should consult with their legal counsel to obtain explanations of all issues addressed herein and what steps would be necessary to protect their legal rights.

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Cuevas, Garcia & Torres, P.A.
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