EARL L. NELSON, APPELLANT,
v.
JAMES L. BOYER AND SANDRA L. BOYER, HIS WIFE, APPELLEES
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Earl Nelson appealed a summary judgment validating his father's interspousal conveyance of real property. The court reversed, holding that the property became homestead property when the spouses began occupying it, and therefore the attempted conveyance creating an estate by the entireties was void.
The interspousal conveyance was void ab initio because the property acquired homestead status when the spouses occupied it as their matrimonial domicile. Section 689.11, Florida Statutes, permitting creation of an estate by the entireties is inapplicable to homestead property under the 1885 Florida Constitution. Dorothy Nelson acquired only a life estate upon her husband's death, which she could convey only to the Boyers; Earl Nelson acquired the remainder interest.
[1] Homestead status attaches to property when a married couple resides in it, even if they were not residing there at the time of purchase.
[2] An interspousal conveyance of homestead property is void ab initio.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Homestead status having attached to the property, the subsequent conveyance in an effort to establish an estate by the entireties was void ab initio.”
Establishes the core holding that once homestead status attaches, interspousal conveyances to create tenancies by the entireties are void from inception.
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Join FLexlaw to unlock all legal intelligenceLouis E. Nelson purchased property on October 15, 1962, and moved in with his future wife Dorothy on October 18, 1962. They married and executed a dee…
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SCHOONOVER, Judge.
The appellant, Earl L. Nelson, has appealed a final summary judgment holding that an interspousal conveyance of certain real estate was valid.' We revérse.
Louis E. Nelson, appellant’s father, purchased the property in question on October 15, 1962. At all times material to this case, the appellant did not live on the property, was a self-supporting married adult, and resided outside of the state of Florida.
On October 18, 1962, Louis E. Nelson and his future wife, Dorothy, moved into the property which was to become their matrimonial domicile and lived there together continuously until Louis E. Nelson’s death on February 20, 1973.
On October 19, 1962, the parties were married and on the same day executed the deed in question. The deed reflects that Louis E. Nelson joined by his wife, Dorothy Nelson, conveyed the property by warranty deed to Louis E. Nelson and Dorothy Nelson, his wife. The deed was executed pursuant to section 689.11, Florida Statutes (1961), in an effort to create an estate by the entireties.
On August 12, 1980, after Mr. Nelson’s death, Mrs. Nelson conveyed the property to her daughter Sandra L. Boyer and her husband James L. Boyer. The Boyers, appellees, filed the instant action seeking a declaratory judgment declaring them to be holders in fee simple of the property.
The trial court found that the property had not acquired homestead status, and, therefore, the interspousal transfer in question was valid.
We agree that Louis E. Nelson did not become the head of the household during the three-day period he owned the home prior to his marriage to Mrs. Nelson. Earl L. Nelson was a self-supporting adult child who did not reside on the property. However, at the time of Louis’ marriage to Mrs. Nelson, the parties were already residing in the home, and it therefore became homestead property immediately. Homestead status having attached to the property, the subsequent conveyance in an effort to establish an estate by the entireties was void ab initio. Gotshall v. Taylor, 196 So. 2d 479 (Fla. 4th DCA 1967); Moore v. Moore, 237 So. 2d 217 (Fla. 4th DCA 1970).
Even though the deed was executed pursuant to section 689.11, Florida Statutes (1961), which permits the creation of an estate by the entireties by deed from the husband to the wife, the statute is inapplicable to homestead property under Article X of the 1885 Florida Constitution, which was in effect at the time of the transfer. Fla.Const. of 1885 art. X § 4.
Since the October 19,1962 deed was void, Mrs. Nelson acquired a life estate in the property at the time of Mr. Nelson’s death and therefore could only convey a life estate to the appellees. The appellant acquired the remainder interest upon his father’s death.
We reverse and remand for the entry of a judgment consistent herewith.
SCHEB, C. J., and RYDER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Chapman v. Chapman, 526 So. 2d 131 (Fla. 3d DCA 1988)…ead property, executed solely by the owner either directly to the other spouse as grantee or to both spouses as tenants by the entireties is ineffective to convey legal title and is void ab initio. Moore, 237 So. 2d at 220. See also Nelson v. Boyer, 412 So. 2d 31 (Fla. 2d DCA 1982) (1962 deed attempting to establish estate by the en-tireties from homestead property was void ab initio); Robbins v. Robbins, 411 So. 2d 1024 (Fla. 2d DCA) (1966 deed by which husband purportedly conveyed homestead property to him…
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Otto v. Sigmund, Jr., 631 So. 2d 329 (Fla. 1st DCA 1994)…tutory provision cannot modify the constitutional requirements of the 1885 Constitution, which governs the case before us, as noted. Robbins v. Robbins, 411 So. 2d 1024, 1025 (Fla. 2d DCA), rev. dismissed, 417 So. 2d 330 (Fla.1982); Nelson v. Boyer, 412 So. 2d 31 (Fla. 2d DCA 1982). Accordingly, the order under review is AFFIRMED. ERVIN and ALLEN, JJ., concur. . The law established under the 1885 Florida Constitution controls conveyances occurring before 1968, when the state constitution was revised. Robb…
Authorities Cited
- Gotshall v. Carene Grant Taylor, 196 So. 2d 479 (Fla. 4th DCA 1967)
- Moore v. Moore, 237 So. 2d 217 (Fla. 4th DCA 1970)