Can Heir Force Sale of Jointly Owned Homestead
A caller stated that his parent had devised his homestead property 30 percent each to himself, his brother, and 40 percent to an unrelated third party. The brother lived in the property with the parent and continues to live in the property as his primary residence after the parent's death. The caller wanted to know if the unrelated heir can force the sale of the parent's homestead and an allocation of the sale proceeds
Because the parent had no surviving spouse or minor child he was able to leave his homestead to whomever he chose. The house is the brother's homestead and is exempt from forced sale under the Florida Constitution. The protection is against not only creditors, but anyone else seeking to force the brother from his home. I think the surviving brother has a life estate in the house. Upon the brother's death, or his abandonment of the homestead, the unrelated relative could request sale and distribution of the net proceeds according to the parent's will. Practically, the surviving sons could likely reach a settlement with the unrelated heir to purchase his interest in the house given that otherwise he may not receive any value for many years.
posted by Jonathan Alper, asset protection and estate planning attorney, Orlando, Florida
Jonathan:
If the owners were tenants in common, the law allows for partition.
"The Florida Supreme Court in a case where the land was owned by tenants in common following a divorce stated that, although the purpose of the homestead exemption is to protect the family home from forced sale for the debts of the owner and head of the family, it had "never held that the homestead provision precludes a common owner of property from suing for partition and obtaining a forced sale in order to obtain the beneficial enjoyment of her interest in the property." 20 Further, "(h)omestead interests should be protected from forced sale whenever possible, but not at the expense of others owning interests in the property." 21"
Tullis v. Tullis, 360 So.2d 375, 377 (Fla.1978).
360 So.2d at 378.