blogger visitor

Sunday, November 07, 2010

CAN SEPARATED SPOUSES HAVE TWO HOMESTEADS? [FLORIDA]

In a recent Florida case, a separated husband and wife each had their own homesteads (although the wife’s was situated in New York). The local property appraiser denied granting a homestead exemption to the husband for his Florida residence.

CONSTITUTIONAL PROVISIONS.  Article VII, Section 6(a) of the Florida Constitution provides that a homestead exemption extends to “[e]very person who has the legal or equitable title to real estate and maintains thereon the permanent residence of the owner, or another legally or naturally dependent upon the owner.” However, section 6(b) directs that “[n]ot more than one exemption shall be allowed any individual or family unit or with respect to any residential unit” (emphasis added). There is no constitutional or statutory definition of the term “family unit” nor is there case law interpreting the term in context of the tax exemption.

REGULATORY RULE. However, this a regulatory provision on the issue. Florida Administrative Code Rule 12D-7.007(7), provides as follows: “If it is determined by the property appraiser that separate permanent residences and separate “family units” have been established by the husband and wife, and they are otherwise qualified, each may be granted homestead exemption from ad valorem taxation under Article VII, Section 6, 1968 State Constitution. The fact that both residences may be owned by both husband and wife as tenants by the entireties will not defeat the grant of homestead ad valorem tax exemption to the permanent residence of each.”

There is also case law that recognizes separate homestead exemptions for creditor protection purposes under similar facts.

The property appraiser argued that the application of the FAC rule would make his job in reviewing homestead exemptions virtually administratively unworkable, because no property appraiser has the staff or resources to verify whether a married couple is, in fact, maintaining two separate permanent residences and family units.

The court was not impressed. It held that in circumstances when a husband and wife have established two separate permanent residences in good faith and have no financial connection with and do not provide benefits, income, or support to each other, each may be granted a homestead exemption if they otherwise qualify.

Wells v. Haldeos, 2D09-4250, 2010 WL 4137581 (Fla. Dist. Ct. App. Oct. 22, 2010)

Post a Comment