Title: Homestead Exemption-Divorced Owners

070-154 - October 28, 1970

To: James W. Bass, Tax Assessor, Fort Pierce.

QUESTIONS:

1. When a husband and wife owning a home as an estate by the entirety are divorced and the wife continues to live in the home, is she entitled to claim a $5,000 homestead exemption or only $2500 for the one half interest she owns?

2. Would your answer be different if the divorce decree provided that the wife is to have the use of the home and the husband is to take care of the monthly mortgage payments, insurance, and taxes and for the support of the minor children?

AS TO QUESTION 1:

On the facts given, assuming that the divorced wife pays the taxes and is otherwise eligible to claim homestead tax exemption, she is entitled to the $5,000 exemption unless the assessed value of her interest is less than that amount.

Article VII, §6 of the State Const., provides exemption from taxation to "every 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." Clarification and statutory implementations of this constitutional mandate are found in §196.031, F.S., which provides for apportionment of the exemption as follows: said exemption may be apportioned among such of the owners as shall reside thereon, as their respective interests shall appear...." (Emphasis supplied.) The amount of the exemption is to be "the value of the real estate assessable to the owner" (Art. VII, §6(b), State Const.) "up to the assessed valuation of five thousand dollars...." (Art. VII, §6(a), State Const.).

The interest assessable "may be held by legal or equitable title, by the entireties...[or] in common...." (Art. VII, §6(a) State Const.). The husband and wife, upon divorce, are vested with the title as tenants in common. Section 689.15, F.S., provides: ". ..in cases of estates by entirety, the tenants, upon divorce, shall become tenants in common." Even when the divorce decree makes no mention of property held by entireties as husband and wife, as soon as the decree becomes effective the parties become tenants in common by operation of law. Powell v. Metz, 55 So.2d 915 (Fla. 1952). The interests of tenants in common are separate property interests (AGO 063-29, Mar. 13, 1963, Biennial Report of the Attorney General, 1963-1964, p. 43), subject to separate taxes (AGO 055-319, Dec. 5, 1955, Biennial Report of the Attorney General, 1955-1956, p. 411). Each is assessable as the whole of an undivided one half interest. Attorney General Opinion 063-29 mentioned above. If such interest is assessed up to $5,000, the exemption corresponds to the assessment and is equivalent to the value of the interest.

Because the statute allows apportionment of homestead exemption only among such owners as reside thereon, the wife is the only recognizable claimant. Her exemption is allowed for the value of her undivided one half interest in the whole, not to exceed, however, $5,000.

AS TO QUESTION 2:

If the former husband pays the taxes, the divorced wife has no apparent right to claim the exemption. As the owner responsible for taxes, the husband is the only person, if any, entitled to the exemption.

You state in this instance that the husband supplies support payments for minor children. These children may be classified as his dependents. Osceola Fertilizer Co. v. Sauls 1929, 123 So. 780. Determination of dependency is a fact question which must be decided in view of the circumstances in each case, and the fact that support payments are made does not, in and of itself, establish the dependent status of the children. Vandiver v. Vincent, 139 So.2d 704, 709-710 (2d D.C.A. Fla. 1962). In Re Kionka's Estate, 113 So.2d 603 (2d D.C.A. Fla. 1959) contains standards which are most often used to determine the dependent status. The pertinent passage in the case reads as follows: "The relationship should be one in which an established and continuing personal authority, responsibility and obligation actually rests upon one...for the welfare of others." Id, at 606. (Emphasis supplied.)

If the husband is deemed the person upon whom the children are dependent, he may be considered the head of a family for purposes of homestead exemption. No apportionment appears to be in question, since the husband is responsible for all tax liabilities on the property.

The purpose of homestead provisions is expressed in 11 Fla. Law and Practice Homestead Exemption, §4 to be generally as follows:

Homestead laws are founded upon considerations of public policy....The homestead exemption is designed to benefit not only the head of the household, but also the family, and to protect the family home....

Our courts have always held that homestead laws should be construed liberally in the interest of the family and in favor of the person entitled to them. To grant the husband the exemption in this instance is simply to allow him to be benefited by the exemption designed to make his support of his family less onerous. In Osceola Fertilizer Co. v. Sauls, 123 So. 780 (Fla. 1929), the judge noted:

Though a man be divorced from his wife, and she entrusted by the decree with the custody of the children and possession of the home, his status as head of a family is not lost nor his obligations to his children terminated, and his right to a homestead remains.

Thus, if there are minor children whom the husband supports, and if he pays taxes on the homestead property, he is entitled to an exemption up to the value of his assessed interest, not to exceed $5,000. (Article VII, §6, State Const. His interest, like his wife's, is that of a tenant in common. §689.15, F.S.) The exemption should be in granted according to the valuation of his undivided one half interest in the whole.