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Florida Homestead Property Rights: A Caution for Survivorship Deeds.

January 2, 2024

Homestead rights are complicated. Typically, a spouse has an inherent right in the homestead property of a spouse, even if not on title, and that is enforced via Probate. That interest is either a life estate or an election to take a ½ interest if the spouse was not on the title and not an heir. That changes when the title/property is held as a joint tenancy with the right of survivorship between the deceased spouse and someone else. Marger v. De Rosa and Ostyn v. Olympic offer valuable insights into the interplay between joint tenancy arrangements and homestead protection acquired upon death of a spouse.

Marger v. De Rosa: The Homestead Question

Marger v. De Rosa revolved around Francis A. De Rosa; the owner of a house structured as a joint tenancy with the right of survivorship. In 1995, De Rosa and his mother jointly acquired a home in Largo, Florida, the deed explicitly stating joint tenancy with the right of survivorship. When De Rosa passed away intestate in 2008, the trial court had to determine the homestead status of the property. The trial court determined that the Property was a homestead and provided a life estate for the surviving spouse. The Second DCA reversed on appeal, citing Ostyn v. Olympic, 455 So.2d 1137 (Fla. 2d DCA 1984), holding that no homestead rights were attached. In the Ostyn case, the individual who passed away was unmarried when executing a deed that conveyed his home to himself and three other family members under the arrangement of joint tenants with the right of survivorship (Id. at 1138). Over the course of eleven years, he continued to be the sole owner of the property, surviving by a niece, the only remaining joint tenant, and a wife. The couple had resided in the home as husband and wife for seven years before his demise. The Court held that upon the decedent’s death, his interest in the property ceased to exist, leaving no property interest he owned to which a homestead interest could attach for the benefit of his wife.

Practical Implications for Florida Homeowners

If the title to your home is held by your spouse and some other person as joint tenants with the right of survivorship, there will be no mechanism to enforce your spousal rights to the Property absent a Last Will and Testament and/or Trust. This applies to both surviving spouses and children. So, if it’s your intention to provide for your family upon your death and you hold title to property as joint tenants with the right of survivorship, make sure to include a mechanism for their interests in your Estate plan.

Our office handles Wills, Trusts, and Estate issues throughout Florida. If you have any questions about this topic or anything related to Florida Estate or Real Estate laws, call us for a free consultation.

-Brice Zoecklein, Esq.


Disclaimer:   The information contained in this blog/website is for informational purposes only and provides general information about the law but not specific advice.  This information should not be used as a substitute for advice from competent legal counsel as laws change and the facts in your specific case need to be analyzed.