Homestead laws are favored and are liberally construed to protect the homestead. The initial burden of proof to establish the existence of a homestead is on the claimant. Once a homestead is established, it is presumed to continue until it is terminated. The party asserting termination has the burden of proof. Termination can occur through death, abandonment, or voluntary alienation[i].
The estate in the lot of land occupied as a homestead by the owner of the estate might be conveyed by deed, in the mode provided in the law of conveyances. However, the operation of the deed in giving right to immediate possession remains suspended so long as the exemption lasts. All “rights in real estate” can be conveyed in this manner. All claims to real estate may be so transferred by deed to another. This homestead exemption could not be sold or conveyed to another so as to vest in the grantee the homestead right of the grantor. The homestead right might be terminated or extinguished either by abandonment, or by a release in writing properly signed and properly acknowledged, or by surrender of the possession to a grantee in a deed in pursuance of the deed[ii].
The death of the owner of the homestead does not transfer the title absolutely and unconditionally to a widow and her children. It descends to them the same as other real estate owned by the deceased, except that it is subject to the homestead interests. So long as it retains its homestead character it cannot be sold to pay ordinary debts. Moreover, there cannot be a compulsory division and distribution. While it is so occupied, it may be conveyed by the persons in whom the homestead interests vest and the title to the property or any interest therein will pass free from any liability for the ordinary debts of the estate. However, abandonment by them will destroy the homestead interest. When it is abandoned it becomes subject to the debts of the estate, the same as other lands which were never impressed with the homestead character. This homestead interest only vests in the widow and such of the children as occupied the homestead at the time of the owner’s death[iii].
A temporary absence or removal will not constitute an abandonment of a homestead, if there is a constant and abiding intention to return and occupy the same as a home. The duration of the absence is a matter for consideration but is not conclusive. Abandonment is a matter of intention and is to be determined in the light of all the facts and circumstances. The homestead exemption shall not be impaired by temporary removal or absence with intention to reoccupy the same[iv].
A homeowner can forfeit the right to claim a home exempt. Any action taken by the homeowner that is incompatible with an intention to permanently reside in a residence may cause the homeowner to lose the benefits of law. A homeowner can waive the right to claim homestead protection by abandonment or alienation in any manner provided by law[v]. Abandonment of the homestead is one way that the protection of the homestead exemption may be lost[vi]. Absence alone is not sufficient to constitute abandonment unless an intent to abandon is shown[vii].
Whether there has been an abandonment of a homestead so as to deprive it of its exemption character should be determined by a consideration of all the pertinent facts and circumstances of each case as it arises, having in view the intent and purposes of the organic provisions that the homestead shall be exempt from forced sale[viii]. Circumstances that indicate abandonment of homestead include:
- the purchase of a new homestead,
- relinquishment of title to the property, and
- declarations and actions of the parties claiming homestead tending to indicate an intent not to return[ix].
The party asserting the abandonment of a homestead has the burden of proving it by evidence undeniably clear and beyond almost all reasonable ground of dispute[x]. To find abandonment of a homestead, it must be voluntary and without an intention to return. Involuntary or compulsory absences from the home have never per se constituted relinquishment of the homestead rights. On the other hand, it is absence from the home coupled with the clear intention to abandon the homestead that is sufficient proof of abandonment[xi]. Where the husband removes from the homestead with his family and acquires another home, the right is lost[xii].
A homestead is extinguished when the property is voluntarily conveyed and is not revived when the former owners reacquire the property. There can be no homestead right unless there is an existing interest of some nature and none existed here. A quitclaim deed is deemed a good and sufficient conveyance of all then existing legal and equitable rights of the grantor in the described premises[xiii]. Once acquired, a homestead right is not terminated by death of a spouse or departure of children by reaching the age of majority. Additionally, divorce will not terminate the homestead right in the head of household who continues to occupy the homestead[xiv]. If one spouse separates from the other and abandons the premises, the homestead rights accrue to the spouse who remains in the residence[xv].
In a divorce proceeding it is competent for a court, in a divorce decree, to set aside the homestead to either party. However, where the same makes no disposition thereof, the homestead remains to the husband, as the head of the family, discharged of all homestead rights or claims of the other party[xvi]. Under certain circumstances, the right to have a homestead allotted can be waived. The Sheriff is under a duty to allot a homestead before selling real estate under execution without a request for it. Nevertheless, defendants are under a duty not to acquiesce in the extinguishment of their rights to a certain extent. Thus, they waive the right[xvii]. Statutes relating to the homestead and constituting a favor of the law to protect the debtor and family are liberally construed in favor of the debtor and strictly against the creditor. The waiver cannot be made by implication. However, it must be made by an express declaration in writing[xviii].
[i] Perry v Dearing (In re Perry), 289 B.R. 860 (W.D. Tex. 2002).
[ii] Warner v. Crosby, 89 Ill. 320 (Ill. 1878).
[iii] Brigham v. Pfister, 151 Kan. 991 (Kan. 1940).
[iv] In re Dunlap’s Estate, 161 Ore. 93 (Or. 1939).
[v] In re Franzese, 383 B.R. 197 (Bankr. M.D. Fla. 2008).
[vi] In re Beebe, 224 B.R. 817 (Bankr. N.D. Fla. 1998).
[vii] Pierce v. Pierce (In re Pierce), 2003 Bankr. LEXIS 2020 (Bankr. D. Vt. Dec. 1, 2003).
[viii] Olesky v. Nicholas, 82 So. 2d 510 (Fla. 1955).
[ix] In re Lewis, 216 B.R. 644 (Bankr. N.D. Okla. 1998).
[x] Long Bell Lumber Co. v. Miller, 240 S.W.2d 405 (Tex. Civ. App. 1951).
[xi] Farstveet v. Rudolph, 2000 ND 189 (N.D. 2001).
[xii] Buck v. Conlogue, 49 Ill. 391 (Ill. 1868).
[xiii] Wash. Credit v. Houston, 33 Wn. App. 41 (Wash. Ct. App. 1982).
[xiv] Middleton v. Lockhart, 344 Ark. 572 (Ark. 2001).
[xv] Chapman v. Richey, 63 Ill. App. 3d 650 (Ill. App. Ct. 5th Dist. 1978).
[xvi] Steiner v. Steiner, 156 Okla. 255 (Okla. 1932).
[xvii] North Carolina Nat’l Bank v. Sharpe, 49 N.C. App. 693 (N.C. Ct. App. 1980).
[xviii] Home Owners’ Loan Corp. v. Reese, 170 Va. 275 (Va. 1938).