Marger v. De Rosa
2011 Fla. App. LEXIS 587, 57 So.3d 866, 2011 WL 252942 (2011)
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Rule of Law:
Property held in joint tenancy with right of survivorship does not acquire homestead status upon a co-owner's death, even if the deceased had minor children, because the deceased's interest automatically terminates at death, leaving no property interest in their estate for homestead protection to attach.
Facts:
- In 1995, Francis A. De Rosa and his mother, Harriet S. De Rosa, purchased a home in Largo, Florida.
- The warranty deed explicitly stated that Francis and Harriet owned the house as "joint tenants with full right of survivorship and not as tenants in common."
- At the time of this conveyance in 1995, Francis A. De Rosa had two minor children.
- In 2008, Francis A. De Rosa died intestate, meaning without a will.
- At the time of his death, Francis A. De Rosa had no surviving spouse, but he was survived by two minor children and one adult child.
- Harriet S. De Rosa claimed sole title to the property upon her son's death.
Procedural Posture:
- Francis A. De Rosa died intestate in 2008.
- Bruce Marger was appointed as Administrator ad Litem for the Estate of Francis A. De Rosa.
- The trial court issued an order determining that a house owned by Francis A. De Rosa as a joint tenant with right of survivorship was not homestead property for purposes of the administration of his estate.
- Bruce Marger, as Administrator ad Litem, appealed the trial court’s order to the Florida Second District Court of Appeal.
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Issue:
Does property held in joint tenancy with right of survivorship by a deceased parent, who had minor children at the time of purchase, qualify as homestead property and thus be protected from devise upon the parent's death, or does the surviving joint tenant take full title?
Opinions:
Majority - ALTENBERND, Judge
No, the house held by Francis A. De Rosa as a joint tenant with right of survivorship did not qualify as homestead property and therefore became the sole property of his mother, Harriet S. De Rosa, at the instant of his death. The court affirmed the trial court's decision, relying on the precedent set in Ostyn v. Olympic, which held that upon a decedent’s death in a joint tenancy with right of survivorship, the deceased's interest in the property terminates, leaving no property interest for homestead protection to attach for the benefit of heirs. The court clarified that Article X, section 4(c) of the Florida Constitution restricts the devise (transfer by will) of homestead property when an owner is survived by a spouse or minor child, but it does not restrict the type of interests in real property a person may acquire or how a person may title their property. Therefore, even though Francis A. De Rosa had minor children eligible for homestead protection at the time of purchase, he was free to take the property as a joint tenant with the right of survivorship. By doing so, the property did not become homestead property at the time of purchase because his interest was structured to terminate upon his death, allowing his mother to receive full title as the surviving joint tenant without any homestead life estate for his children.
Concurring - DAVIS, J.
Concurred without separate written opinion.
Concurring - MORRIS, J.
Concurred without separate written opinion.
Analysis:
This case clarifies the critical distinction between constitutional restrictions on devising homestead property and the implications of common law property ownership forms like joint tenancy with right of survivorship. It underscores that homestead protection, while robust, generally applies to property interests owned by the decedent at the moment of death that would otherwise be subject to probate and devise. By ruling that a deceased joint tenant's interest simply terminates rather than becoming part of their estate, the court significantly limits the reach of homestead protections in such ownership structures, guiding future cases on estate planning and property titling for individuals with minor children.
