Devise of Homestead Property


Upon death of the person whose property was selected his homestead goes to his heirs or devisees[i].  If not devised as permitted by law, a decedent’s homestead descends in the same manner as other intestate property.

If the decedent is survived by a spouse and lineal descendants, the surviving spouse takes a life estate in the homestead, with a vested remainder to the lineal descendants in being at the time of the decedent’s death[ii].

The homestead exemption, during the lifetime of the owner, is not an estate but is a personal privilege which must be claimed to be effective, and hence it is subject to waiver[iii].  A surviving spouse can waive homestead rights, if done in writing, either before or after marriage[iv].

When a decedent is survived by no minor children and the surviving spouse has waived homestead rights in a valid antenuptial agreement, there is no restriction on the devise of homestead property[v].

Public policy favors preservation of the surviving spouse’s right to homestead and exempt property, and, therefore, an agreement in derogation of those rights must be strictly construed, and a waiver should not be found unless clear and explicit[vi].

The law also favors antenuptial contracts, and because of the fiduciary relationship between the parties, they are held to a punctilious standard of performing their agreement.

The right of an owner of homestead property to devise it is generally subject to the right of the surviving members of his/her family to use that property after the owner’s death[vii].

Property occupied by its owner and his wife as the homestead on the date of his death, when the widow inherits the title, is held by her as her absolute property, free from debts of the decedent, so long as she continues to occupy the same as her homestead[viii].

The general rule is that the homestead passes free of claims of creditors if the devisee of the property under the will is an heir of the decedent who is entitled to receive property under the laws of intestacy[ix]. Thus, when any homestead is disposed of by the last will and testament of the owner, the devisee takes the same free of all judgments and claims against the testator of his homestead estate, except mortgages lawfully executed thereon and laborers’ and mechanics’ liens[x].

However, such exemption does not extend to any devisee other than a child, grandchild, widow or widower, and father or mother of the testator.  Further, such homestead is subject to and charged with the expenses of his last sickness and of his funeral and the costs and charges of probate.

Where a decedent is survived by a spouse or lineal descendants, homestead property is not regarded as an asset of the estate and is not subject to administration by a personal representative[xi].  Under such circumstances, the homestead passes to the heirs completely outside of the will, by operation of law.

Under some jurisdictions, testamentary transfers of homestead property by owners with minor children are ineffective, and a married owner who desires to transfer homestead property must do so with his/her spouse[xii].

Homestead property does not become part of the probate estate subject to the control of the personal representative unless a testamentary disposition is made to someone other than an heir.  Also, if the homestead property does not become an asset in the hands of the personal representative, it cannot be used by the personal representative to satisfy the devise to a beneficiary[xiii].

The legal status of dower and homestead is much the same and what is said with respect to dower and its incidents is alike applicable to the homestead[xiv].  Both the dower and homestead rights of widows are the objects of judicial favor and solicitude.

A widow may not be divested of dower and homestead by testamentary or other alienation, except by express language or irresistible implication from the terms of the instrument attempting to accomplish that result, and then, of course, the process of attainment must be legal.

Where the provisions of a will are inconsistent with an intention on the part of the testator that the survivor be entitled to enjoy the homestead right or estate and also take the devise or bequest that is given by the terms of the instrument, the survivor may not claim both and must choose or elect to take the one or the other[xv].

If a spouse expressly declares in a will that a provision made for a widow or widower is in lieu of homestead, the widow or widower must elect which to take[xvi].  However, it is not necessary that the intent to exclude the survivor from enjoyment of the right of homestead appear in express words.

In determining the question of intention, the court of construction gives consideration primarily to the presumption that the decedent did not intend to deprive the survivor of the homestead estate and such estate or right is given by law.

A testator having devised his homestead to his wife and a portion of his children, an excluded child having inherited an interest by the death of one of the devisees, is entitled to have the property divided and her interest allotted to her[xvii].

As to a widow, widower, or surviving minor children of the deceased testator, the testator’s disposal by will and testament of a homestead to any other person may become effective only when they, that is, the widow, widower, or minor children, elect to take under such will and testament[xviii].  When such election is made, it is by virtue thereof and not by reason of the statute that the court is prevented from setting apart such homestead.

However, the doctrine of election can have no application where the property received is not greater than the party would have the right to take under the law without reference to any will[xix].

[i] In re Estate of McGee, 154 Cal. 204 (Cal. 1908).

[ii] In re Estate of Finch, 401 So. 2d 1308, 1309 (Fla. 1981).

[iii] In re Estate of Moore, 210 Ore. 23 (Or. 1957).

[iv] Wadsworth v. First Union Nat’l Bank, 564 So. 2d 634 (Fla. Dist. Ct. App. 5th Dist. 1990).

[v] Jacobs v. Jacobs, 633 So. 2d 30 (Fla. Dist. Ct. App. 5th Dist. 1994).

[vi] In re Estate of Moore, 210 Ore. 23 (Or. 1957).

[vii] In re Estate of McGee, 154 Cal. 204 (Cal. 1908).

[viii] In re Casey’s Estate, 156 Kan. 590 (Kan. 1943).

[ix] Monks v. Smith, 609 So. 2d 740 (Fla. Dist. Ct. App. 1st Dist. 1992).

[x] In re Dunlap’s Estate, 161 Ore. 93 (Or. 1939).

[xi] Monks v. Smith, 609 So. 2d 740 (Fla. Dist. Ct. App. 1st Dist. 1992).

[xii] Venn v. Reinhard (In re Reinhard), 377 B.R. 315 (Bankr. N.D. Fla. 2007).

[xiii] McEnderfer v. Keefe (In re Estate of Mahaney), 903 So. 2d 234 (Fla. Dist. Ct. App. 2d Dist. 2005).

[xiv] Seaton v. Seaton, 184 Va. 180 (Va. 1945).

[xv] Shelbyville v. Kendrick, 161 Tenn. 149 (Tenn. 1930).

[xvi] Anderson v. Anderson, 70 S.D. 165 (S.D. 1944).

[xvii] Hazelett v. Farthing, 94 Ky. 421 (Ky. 1893).

[xviii] In re Dunlap’s Estate, 161 Ore. 93 (Or. 1939).

[xix] Overfield v. Overfield, 326 Mo. 83 (Mo. 1930).