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Tuesday, March 11, 2008


An interesting homestead case gives us the opportunity to test our knowledge of Florida law. Here are the facts. Husband owns the homestead. He executes a valid deed that transfers the homestead to create a life estate interest in himself and his wife as tenants by the entireties, and a remainder interest after their deaths to one of his children. The wife does not join in the deed. The husband then dies, without a Last Will.

Remember that Article X of Florida's Constitution provides in part that "[t]he 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. " Further Fla.Stats. Section 689.11 provides in pertinent part that "[a] conveyance of real estate, including homestead, made by one spouse to the other shall convey the legal title to the grantee spouse in all cases in which it would be effectual if the parties were not married, and the grantee need not execute the conveyance. An estate by the entirety may be created by the action of the spouse holding title: (a) Conveying to the other by a deed in which the purpose to create the estate is stated; or (b) Conveying to both spouses."

So what legal interests are created under Florida law? See if you can arrive at the proper answer.

In Clemons and Gilpin, Jr. v. Thorton, 1st District Court of Appeal (Case No. 1D07-1664) held that:

a. A valid life estate, to be held as tenants by the entireties was created between the husband and wife. A grantee spouse is not required to join in to a conveyance to herself by the other spouse.

b. The conveyance of the remainder was invalid, since the grantee spouse would have needed to join in that conveyance.

c. The fact that the conveyance of the remainder was void did not impact the validity of the life estate conveyance.

d. Since the conveyance of the remainder interest was void, the husband continued as the owner of the remainder interest at his death.

e. At the husband's death, since he died intestate (without a Last Will), the remainder interest (effective at the death of the wife) passed to his then surviving lineal descendants per stirpes.

So, how did you do?

By the way, remember you can consult a summary table of Florida's homestead restrictions on transfers.

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