In order to answer this question, there are two issues that need to be addressed: 1) whether a person with a fractional ownership can claim the homestead creditor exemption, and 2) which of the co-owners qualify for the homestead creditor exemption, and which, if any, do not. 2d 1082, 1085 (Fla. 1982) (“Subparagraph (c) [of Section 4 of Article X of the Florida Constitution] begins with the phrase, ‘The homestead shall not be subject to devise…. 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. A JTWROS automatically transfers the property to the other owners when one of the joint tenants dies. 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. 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. 34, 34 (Oct. 2003). • Devise and Descent, Life Estates and Remainders — The rules regarding devise and descent of transfer restricted homestead do not apply to life estates because life estates end at the death of the life tenant; thus, there is no interest for the life tenant to devise or pass along. 23 Snyder v. Davis, 699 So. 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 326, 327 (Fla. 1st D.C.A. Feb. 28, 2007). 21 Remember the remainderman cannot qualify for homestead and, therefore, cannot use the $25,000 tax exemption or the SOH tax cap. 2d 1111, 1113 (Fla. 4th D.C.A. 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. This type of holding may avoid the need for probate in Florida to transfer title to the asset. 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. 44 See Donna Seiden, An Update on the Legal Chameleon: Florida’s Homestead Exemption and Restrictions, 40 U. Fla. L. Rev. 2d 23, 27 (1959)). Recently, new case law has established that exactly how the Deed is worded it is very important in the determination of whether the property was a homestead property when one of the owners of the property dies. 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. 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. Right of Survivorship: The power of the successor or successors of a deceased individual to acquire the property of that individual upon his or her death; a distinguishing feature of Joint Tenancy . However, anytime there is a “change of ownership,”15 the property must be assessed at just value the following January.16 In addressing the application of the SOH tax cap to co-owned property, F.S. • Devise and Descent, Tenants in Common — When property is owned as tenants in common, the constitutional and statutory rules of devise and descent apply to transfer restricted homestead. 2d 1325, 1326 (Fla. 4th D.C.A. It governs the way property is owned and requires all in the tenancy to enter the agreement at the same time. • Bringing the Tax Exemptions Together — Whether property is titled as tenants by the entirety, joint tenants with right of survivorship, tenants in common, or a life estate, the co-owner who can qualify for the homestead tax exemption21 can also qualify to use some, if not all, of the $25,000 homestead tax exemption and Save Our Homes tax cap. Joint Tenancy with Right of Survivorship, or “JTWRS” as it’s commonly referred to, is the ability to own property concurrently with another individual knowing that upon your passing the joint owner will automatically assume complete ownership of the subject property. 34, 34 (Oct. 2003). . 2008). They might be related or unrelated. When property is titled as tenants in common between co-owners, the application of the $25,000 exemption gets slightly more complicated. §732.2045(1)(i). See Moss v. Estate of Moss, 777 So. Greg, here in the state of Florida, when you have multiple owners of a piece of property and they own the property as joint tenants' rights of survivorship, they can get full homestead exemption, as long as at least one of them lives in the property. However, a married couple can hold title as joint tenants - such as where they specifically state in a deed, title, or check the box while opening a new bank account. Alienation, Devise, and Descent 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. Co. v. Lagasse, 223 So. Code R. 12D-7.012 (2011) (“No tenant in common shall receive the homestead tax exemption in excess of the assessed valuation of the proportionate interest of the person claiming the exemption.”). 48 In re Williams, 427 B.R. 2) Abby and Ben qualify for the homestead tax exemption and SOH tax cap. Parents who are concerned with giving their child a greater property interest than the child is actually paying for can consider using a promissory note signed by their child (and recorded) to protect parents’ interest and still allow their child to take advantage of the homestead tax benefits. 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. This is extremely important to understand when acquiring property with others. 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. At the time of the conveyance, Mr. DeRosa had two minor children. 2d 425, 427 (Fla. 3d D.C.A. 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. You must be using the property as your principal place of residence when you record the homestead declaration. 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. 1972); see also Chapman v. Chapman, 526 So. 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. 2d 1110 (Fla. 4th D.C.A. X, §4(c). §193.155(3)(a) (2011). 55 Fla. Const. If your property is held as joint tenants you may want to talk to an attorney about changing the type of ownership, There can be tax advantages to holding property as community property with the right to survivorship. Each partner has equal right to possession in the property and like a Joint Tenancy with the right of survivorship, complete title passes to the surviving spouse upon death. The percent change in the Consumer Price Index for all urban consumers, U.S. City Average, all items 1967=100, or successor reports for the preceding calendar year as initially reported by the United States Department of Labor, Bureau of Labor Statistics. 7 Fla. Stat. Two of the three—joint tenancy and tenancy in the entireties—come with what is referred to as a “right of survivorship.” What that means is that, when one co-owner dies, the surviving owner automatically receives full, undivided ownership of the asset. The assessed value for ad valorem tax purposes will be $92,700: • Abby, Ben, and Chuck’s interest qualifies for the homestead tax exemption; therefore, their interests receive the SOH tax cap and cannot be increased by more than three percent. Id. 46 Aetna Ins. N.D. Fla. 2010). §732.4015(1), where it is similarly states that “the homestead shall not be subject to devise if the owner is survived by a spouse or a minor child or minor children, except that the homestead may be devised to the owner’s spouse if there is no minor child or children.”49 F.S. At the time of Mr. DeRosa’s death, his mother, Harriet, claimed title to the property, but the Administrator ad Litem of Mr. DeRosa’s estate claimed that the house should have homestead status for the benefit of the two minor children. art. 22 See Havoco of America, Ltd. V. Hill, 790 So. Fla. 1995) (“In absence of evidence to the contrary, co-tenants are presumed to [own] equal undivided interests”). See Phillips v. Hirshon, 958 So. When he died intestate in 2008, Mr. DeRosa had no surviving spouse, but he did have two minor children and one adult child. They are not legal advice and should not be used as such. Creditor Protection - Florida Real Estate Law Questions & Answers - Justia Ask a Lawyer Can a Creditor Put a Lien on a Home That Is in Joint Tenancy?. Email Disclaimer As an example, assume that Abby, Ben, and Chuck own whiteacre as tenants in common each with a one-third interest. Chuck’s family will have no interest in whiteacre, which means Abby and Ben can force Chuck’s family to vacate what was their family home. Id. §689.15 (2011) (unless it is a married couple acquiring property). 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. art. 2001); Thompson v. Laney, 766 So. • Save Our Homes Tax Cap — In 1992, Florida adopted a state constitution provision known as the Save Our Homes (SOH) tax cap, which limits the annual increases to homestead property for ad valorem tax purposes.13 F la. Fla. Const. Therefore, life estates and remainder interests fall into the same category as tenants in common property. 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. Provided all three qualify for the homestead creditor exemption, whiteacre will be exempt from the individual creditors of Abby, Ben, and Chuck. 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. Co. v. LaGasse, 223 So. S.D. art. Therefore, a life tenant cannot neglect the property allowing it to fall into disrepair or commit waste, such as consuming or exploiting the resources upon the property.43 The remainder (future) interest holder must approve any improvements to the property, and has the right to inspect the property for waste or damage.44 Upon the death of the life tenant, the life estate ends and the remainderman (person with the remainder interest) becomes the owner by operation of law. 2d 659 (1946); Wittock v. Ramponi, 446 So. See Beal Bank, SSB v. Almand and Associates, 780 So. Contacting us by email does not establish an attorney-client relationship. The first two—joint tenants with right of survivorship and tenants in common—are available to anyone, regardless of marital status. There are three ways that multiple owners can hold title to Florida real estate: tenants in common, joint tenants with right of survivorship, and tenancy by the entirety. However, in no situation can the $25,000 tax exemption amount exceed the total value of the property. (1) Assessments subject to this subsection shall be changed annually on January 1st of each year; but those changes in assessments shall not exceed the lower of the following: a. 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. A Transfer on Death Deed allows for the execution of a present document whereby an owner can maintain possession and tax exemptions, avoid future probate, and retain the right to rescind at any time before death. 2d 1018 (Fla. 2001) (demonstrating the far-reaching creditor protection). For married couples in Florida. practice in the areas of Florida Probate Litigation, Florida Trust Litigation and Florida Guardianship Litigation. 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. §732.201(33). 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. • Chuck’s interest qualifies for the homestead tax exemption; therefore, his interest receives the SOH tax cap and cannot be increased by more than three percent. Legal Disclaimer: The materials within this web site are for informational purposes only. 205 (Bankr. This provision is codified in F.S. 57 Therefore, co-owners who want to preserve the transfer restricted homestead … Of course, for Florida courts, the bankruptcy court decisions are merely persuasive and not binding; nevertheless, it does leave room for discussion on the subject. Survivorship language in Florida deeds must be precise as to who the survivorship clause applies to when there are several joint owners. F.S. Probate Administration: Formal vs. Summary. 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. However, even if Ed or Frank’s creditors took their interest, there is little they could do with it until Donna died. X, §4(c) provides that: (c) 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 be no minor child. All three living on the property and qualifying for the homestead creditor exemption creates a complete shield on the property from creditors.37. M.D. 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. For example, Abby, Ben, and Chuck own whiteacre as joint tenants with right of survivorship. Florida law allows two people (think a husband and wife, or a parent and child) the ability to own Florida property together as joint owners in several ways, one of which is known as the “joint tenancy with right of survivorship.” The Joint Tenancy With Right of Survivorship (JTWROS) is familiar to bankers, lawyers, CPAs, and especially estate planners, as a means that legally enables property in Florida to pass … As the Florida Supreme Court noted in Snyder v. Davis, 699 So. 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. X, §4(a) (2010). • Alienation — With regard to alienation of property, the Florida Constitution does not place any restrictions on alienation except that a married owner must have spousal consent to do so (despite whether the spouse has an ownership interest of his or her own in the property).55. 57 Fla. Stat. Id. In the preceding year, blackacre had an assessed value of $90,000; this year, its assessed value is $180,000. art. With regard to property titled as tenants by the entirety or as joint tenants with right of survivorship, when at least one of the co-owners qualifies for the homestead tax exemption, he or she is permitted the entire exemption amount.5 Therefore, as an example, if Abby, Ben, and Chuck own whiteacre with an assessed value of $60,000 as joint tenants with right of survivorship, and Chuck qualifies for the homestead tax exemption, Chuck then can use the entire $25,000 exemption. 919, 939-43 (1988). 2d 375 (Fla. 1978), the Florida Supreme Court held that the Florida “constitutional provisions allow the partition and forced sale of homestead property upon suit by one of the owners of that property” provided it is to protect the owner’s beneficial enjoyment.38 Thus, any of the co-owners of real property can force the property to be partitioned and sold.39 Therefore, if a co-owner does not qualify for the homestead creditor exemption, a creditor of that co-owner can acquire that interest and then force a sale.40 For example, assume Abby, Ben, and Chuck still have one-third interests in whiteacre as tenants in common, except now Abby no longer qualifies for the homestead creditor exemption. §732.401 (2011). You may have also heard about Joint Tenancy with Right of Survivorship … Joint Tenants With Rights of Survivorship . When less than all of the co-owners are going to qualify for the homestead tax exemption, the ownership interest of those owners who do qualify makes a big difference in the assessed value of the property for ad valorem purposes. When at least one co-owner does not qualify for the homestead creditor exemption, a potential problem exists. • Devise and Descent, Joint Tenants with Right of Survivorship — The rules regarding devise and descent do not apply to transfer restricted homestead owned as joint tenants with right of survivorship, because, similar to property owned as tenants by the entirety, at death the property passes automatically to the other joint owners.57 Therefore, co-owners who want to preserve the transfer restricted homestead for their spouse or children should be cautious about owning property as joint tenants with right of survivorship. 26 Beal Bank, SSB v. Almand and Associates, 780 So. Under Florida law, when you add the words “right of survivorship” to a joint tenancy, that means full title to the real estate goes to the owner that survives. X, §4(a) (2010). 41 Ben and Chuck would each receive one-third of the net proceeds from the forced sale. 29 Moxley v. Wickes Corp. , 356 So. Additionally, children need to be aware that if their parents are on the title to their homestead (maybe they helped purchase the property many years ago), that property is subject to their parents’ creditors (unless, of course, the parents are now living there, and it is their homestead for creditor protection purposes). While community property laws only affect those in domestic partnerships, the laws about tenants in common, joint tenancy and bank accounts affect everyone. In 1995, Mr. De Rosa and his mother, Harriet S. De Rosa, purchased a home in Largo, Florida. In Marger, Mr. DeRosa and his mother, Harriet S. DeRosa purchased a home in Largo, Florida as joint tenants with full right of survivorship and not as tenants in common. Joint tenancies and tenancies by the entireties share common characteristics, except the unities of possession and marriage. Joint Tenancy with Rights of Survivorship. This assessment shall change only as provided in this subsection. ), modified, Tullis v. Tullis, 360 So. 2d 429 (Fla. 3d D.C.A. Hiring an attorney is an important decision and should not be based upon advertisements alone. 47 Fla. Stat. 1988); Schneberger v. Schneberger, 979 So. The first kind provides homestead with an exemption from taxes.1 The second protects homestead from forced sale by creditors.2 The third delineates the restrictions a homestead owner faces when attempting to alienate or devise homestead property.3. It is common to see family, especially parents and children, purchase property together or add each other to the title of property. 11 There could be multiple life estate holders (usually seen with a husband and wife), and in those situations the same rules apply based on how the life estate holders are sharing their interests ( i.e., tenants in common, by the entirety, right of survivorship). 2d 19 (Fla. 3d D.C.A. The homestead “ownership” requirement under the Florida Constitution does not restrict the type of property ownership; therefore, a life tenant can qualify for the homestead creditor exemption with his or her life estate.45 T he Florida Supreme Court in Aetna Ins. Florida law recognizes a type of property ownership called "joint tenancy," and a joint tenancy can be created by quitclaim deed. The recent case of Marger v. DeRosa, 57 So.3d 866 (Fla. 2nd DCA 2011) holds that since the property was not homestead property at the time of the joint purchase, the homestead restriction was determined not to apply. Florida courts have consistently applied this section of the Slayer Rule and confirmed that when a joint tenant (with right of survivorship) kills the co-owner of the jointly held property, the property rights as joint tenants with rights of survivorship are extinguished and the property is owned as tenants in common at the time of the victim’s death. The assessed value for ad valorem tax purposes will be $150,900: • Abby and Ben’s interest does not qualify for the homestead tax exemption; therefore, their interests do not receive the SOH tax cap. 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. art. 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. However, should one owner who dies have contracted debt on his or her share … However, co-ownership of property makes realizing the full benefits of Florida homestead more complicated and difficult. 2008) ( quoting In re Levy, 185 B.R. Fla. Const. 12 While a couple Florida bankruptcy court cases have held that a remainder interest holder may be entitled to creditor protection, the argument does not apply to the homestead tax exemptions, and this is because homestead creditor protection and homestead tax exemptions are separate and distinct. 541 (Bankr. 5 Fla. Stat. Id. 852 (Bankr. What is Joint Tenancy with Right of Survivorship (“JTWROS”)? 38 Tullis v. Tullis, 360 So. ’ We believe that this refers to homestead as it is otherwise used in section 4. If homestead property is owned by more than one person as tenants by the entirety or joint tenants with right of survivorship, and at least one co-owner qualifies for homestead tax exemption, that co-owner is permitted the entire exemption amount. art. 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.