By: Karl R. Gruss and Edward L. Kelly
Florida’s homestead exemption protects a married couple’s primary residence from forced sale to satisfy a judgment lien, but what happens when spouses retain two properties as their individual primary residences, claiming homestead protection on each? The answer comes down to whether the spouses are “legitimately” separated, and creditors should take note of a recent decision out of the 4th DCA addressing Florida’s homestead tax exemption, Brklacic v. Parrish , that sheds light on what factors a court may consider in analyzing a couple’s separation and dual homestead protection claim.
The issue arises in the context of both of Florida’s homestead provisions contained in Articles VII and X of the Florida Constitution. Article VII allows residents to claim a tax exemption on their primary residence, while Article X protects an individual’s or family’s primary residence from forced sale. Courts liberally construe Article X to maximize residents’ security in times of financial misfortune, supporting a public policy that promotes homeowner stability. When a couple marries, it is presumed the pair will live in a single household, enjoying a single homestead exemption on their mutual primary residence. But where a couple maintains two residences, each spouse residing permanently in one residence without the other spouse present, courts find that so long as the separation is “legitimate,” extending the homestead protections under Articles VII and X to both residences may be permitted as a matter of public policy. The court in Brklacic refined this concept in the context of Florida’s homestead tax exemption, and the court’s analysis of when spouses constitute “separate family units” eligible for individual homestead tax exemptions may be applied in the future to couples seeking protection from the forced sale of their claimed homesteads.