In re Estate of Scholtz - 543 So. 2d 219 (Fla. 1989)

Rule:

The language of Fla. Const. art. X, § 4, is clear and unambiguous. The homestead may not be devised if the owner is survived by a spouse or minor child.

Facts:

Many years after the deceased and his wife married, they separated and lived apart until his death. During the separation, the deceased bought a piece of residential property titled solely in his name. He lived there until he moved to a nursing home shortly before his death, when he was survived by his estranged wife and one daughter. The trial court determined that the residential property was the homestead property for the protection of the surviving wife and daughter. Petitioner nephew sought review, claiming that the surviving spouse had committed abandonment, so she was not entitled to the property under the homestead provisions of the Florida Constitution.

Issue:

Was the residential property properly treated as homestead property, notwithstanding the fact that the surviving spouse did not live there with the deceased? 

Answer:

Yes.

Conclusion:

The court affirmed the lower court. The language of Fla. Const. art. X, § 4, was clear and unambiguous. The homestead could not be devised if the owner was survived by a spouse or minor child. Because the deceased left a spouse, the descent of his property was controlled by Fla. Stat. ch. 732.401(1) (1987). Thus, it was properly treated as homestead property even though the surviving spouse had not lived there with the deceased.