Revisiting a Familiar Law School Hypothetical: Spouses Cannot Transfer Marital Homestead Without Spousal Permission

Recently, we encountered a case reminiscent of a typical law school real property class hypothetical. Our experience with its prosecution inspired me to write a refresher on the law in this area for our readers. Our experience confirmed how we likely stood up in class and answered as a 1L- one spouse cannot transfer ownership of the marital homestead away from the other spouse without notice and permission from both spouses.

Our client was a 96 year old man who lived in his present residence with his wife throughout the entirety of their marriage from 1977 until 2009. The wife held the property in fee simple from her previous marriage and the property was always titled in her name only. The wife passed away in 2009 and our client has been living on the property since. Considering the property was a marital homestead, his ownership was naturally assumed. However, when analyzing his assets we discovered some ambiguities on ownership of the property stemming from an attempted transfer from his late wife to his estranged step-daughter. The transaction was a classic example of a duress transfer, as the step-daughter induced the mother (our client’s wife) to quit-claim the property to the step-daughter four years before the death of the Mrs. Client. Mrs. Client had been diagnosed and treated for Alzheimer’s disease and had moments where she temporarily lost her faculties. Step-daughter took advantage of this and took her mother to a version of a legal used car lot we will call “Smith’s Bankruptcy & More.” Mrs. Client did not give any notice to her husband of the attempted transfer to our client, and our client did not learn about the transaction until the quit-claim deed came in the mail. Mrs. Client was very distraught and did not remember or understand what she had done. We sought to set aside the transaction as an improper alienation of marital homestead and quiet the title in favor of our client. Our analysis was correct in that we didn’t even need to get into the factual issues of whether undue influence tainted the transaction.

The status of the quit-claim deed and the ownership of the property depended on whether or not our client may claim a homestead exemption at the time the fraudulently procured quit-claim deed was executed.  A survey of Florida case law regarding homestead status, homestead exemption, and marital conveyances yielded the following results:

• Taylor v. Maness – In Taylor v. Maness, 941 So. 2d 559 (Fla. 3d DCA 2006), the husband solely owned the marital home in Marathon, Florida.  He lived there over the course of approximately five years with his wife and son between 1998 and 2002.  In September, 2002, the husband entered into a contract to sell the property with the Taylors.  The wife held no title, but refused to execute the deed transferring the property.  The court held that even the wife need not hold fee simple title to claim the homestead exemption.  She may claim the exemption if she holds only a beneficial interest in the property.  Furthermore, the court held that pursuant to Article X, section 4(c), the husband could not alienate the homestead without being joined by his wife.  More specifically, the court stated that “both [spouses] must join in a conveyance of a homestead owned by one spouse to a third party.” Id. at 564 (citing Jameson v. Jameson, 387 So. 2d 351, 353 (Fla. 1980)).
• Holden v. Estate of Gardner– In Holden v. Estate of Gardner, 420 So. 2d 1082 (Fla. 1982), Husband and Wife resided on real property owned solely by the wife until her death. The husband was the head of the family.  The wife devised the property, including the marital home, to her sister upon her death.  After the wife died, the husband tried to claim that the residence was homestead property.  Homestead status is traditionally limited to property owned by the head of the family.  In determining whether a person is the head of the family, Florida courts have long used a test which requires a showing of either: (1) a legal duty to support which arises out of a family relationship, or (2) continuing communal living by at least two individuals under such circumstances that one is regarded as in charge. Whether an individual is a head is a head of family is a question to be resolved on the facts of each case. This court interpreted Article 4 section X subparagraph (c) as limiting the alienation by the head of the family upon the death of the owner who was also head of the family.
• In re Estate of Van Meter – In In re Estate of Van Meter, 214 So. 2d 639 (Fla. 2d DCA 1968), the decedent and widow had been separated 11 years prior to the date of his death.  Upon his death, the widow claimed homestead of decedent’s residence.  The court held that the widow was not entitled to any benefits of the property because there had been no family relationship and no actual residence at the property at the time of decedent’s death.

In our case, our client was continuously married to his deceased wife from 1977 until her death in 2009. From the date of marriage until Mrs. Client’s death, the married couple resided at the property in dispute. The couple had never filed homestead exemption paperwork or bothered to add our client (the husband) to the deed.

The marriage itself, however, enabled the married couple to claim homestead status, and an intact marriage can only have one homestead.  Law v. Law, 735 So. 2d 522, 524 (Fla. 4th DCA 1999).  It was not necessary for our client and his late wife to claim a homestead exemption for tax purposes to thereafter claim homestead protections, and the fact that the exemption had not been claimed is not evidence that the property is not in fact homestead property.  Taylor v. Maness, 941 So. 2d 559 (Fla. 3d DCA 2006) (citing S. Walls, Inc. v. Stilwell Corp., 810 So. 2d 566, 569 (Fla. 5^th DCA 2002); Pierrepont v. Humphreys, 413 So. 2d 140, 143 (Fla. 5^th DCA 1982)).  The existence of the homestead in any manner is not dependent on claiming or failing to claim the entitlement to an exemption when persons in good faith permanently reside on real property in which they have an ownership interest.  Pierrepont, 413 So. 2d at 143.

It is well established that the “individual claiming the homestead exemption need not hold fee simple title to the property,” and thus, even if our client owned only a beneficial interest in the property, he is entitled to claim a homestead exemption to a conveyance alienating the homestead.  Taylor, 735 So. 2d at 563.  Florida courts have held that in order to claim homestead status, the claimant must show either “(1) a legal duty to support which arises out of a family relationship, or (2) continuing communal living by at least two individuals under such circumstances that one is regarded as in charge.”  Holden v. Estate of Gardner, 420 So. 2d 1082, 1083 (Fla. 1982).  The question whether an individual is the head of the family is a question to be resolved on the facts of the case.  Id. In our case, our client provided for his late wife throughout the marriage.  Thus, by virtue of his intact marriage, actual residence, and support of his wife at the time of the execution of the quitclaim deed from Mrs. Client to sneaky step-daughter, our client could claim a homestead exemption existed at the time of the conveyance.

After determining that our client was entitled to claim the homestead exemption at the time the quitclaim deed was executed, we were thereafter able to claim that the conveyance was invalid as it constituted alienation of the homestead.  Fla. Const. Art. X, § 4(c) (2011) provides:

The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there is no minor child.  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. (Emphasis added).

This provision supports the proposition that regardless of the ownership status of the property, if the property qualifies for homestead status, the homestead may not be alienated without joint conveyance by both spouses.  Taylor, 735 So. 2d at 563.  It follows that in our case, the attempted transfer of the property from Mrs. Client to slimy step-daughter was not a valid conveyance, irrespective of the fact that it was effectuated by influencing a 90+ year old woman suffering from dimentia. Since our client did not sign the quit-claim deed, the wife had inadvertently attempted to alienate our client from his marital homestead.  Because the conveyance was invalid, the wife remained the sole owner of the property. Upon her passing, the property naturally passed to her surviving spouse as tenants in the entirety. At the death of one spouse where the husband and wife held property as tenants by the entireties, “the entire estate in the property vests in the survivor.”  Knapp, 148 Fla. at 314.

Though I surmise it came out a little choppier as a 1L, I’d like to think that my analysis paralleled our actions in this case. If it didn’t, selective memory and the rule of fortuitous war stories will let me recall that it did.