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Can You Waive or Abandon Homestead Property in Lake Mary, Florida or Orlando, Florida Areas?

In a recent case in Seminole County, Florida, the trial court was reversed by the appellate court for denying Homestead status for a decedent’s former residence based on a determination that the decedent abandoned the property when she relocated to a nursing home without conducting an evidentiary hearing. The appellate court ruled that an evidentiary hearing was necessary where the record was insufficient to determine whether the decedent intended to abandon the property or involuntarily ceased to reside in it.  

On the appeal, the appellant asserted that the lower court erred in finding the Decedent abandoned her property when she relocated to a nursing and rehabilitation facility. The appellate court reversed the trial court ruling because material facts were in dispute and the court failed to hold an evidentiary hearing.  

Article X, section 4, of the Florida Constitution provides homestead protection for all residences of Florida homeowners or the owner’s family. Once homestead is established, it can be waived only by abandonment or by alienation in the manner provided by law. Whether a homestead has been abandoned is determined on a case-by-case basis and is, necessarily, a fact-intense inquiry. A finding of abandonment requires a strong showing of intent not to return to the homestead.  

In the case where the appellate court reversed the trial court, the court ruled the record was insufficient to determine whether the Decedent intended to abandon her property or involuntarily ceased to reside on it. The appellate court stated that Florida courts have consistently held that a property is not abandoned for the purposes of homestead protection when the owner involuntarily ceases to reside on the property. 

The appellate court held that because the trial court failed to hold an evidentiary hearing on the homestead petition, the appellate court reversed and remanded the case to the trial court for further proceedings to determine the validity of a Homestead claim denied without a hearing.  

Further, it is a denial of due process for a trial court to refuse to hear the argument that the property was protected from forced sale by the homestead exemption. 

If you have more questions regarding a Marital and Family Law matter, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. at 407-732-7620 and set an initial consultation. You may also visit my website at: https://www.annmariegildenlaw.com 

This article is for informational purposes only and does not form an attorney client privilege.