Burdick v. Burdick, 80-1551

• Court: Court of Appeal of Florida (US)
• Writing for the Court: BASKIN; NESBITT
• Citation: 399 So.2d 410
• Parties: Doris BURDICK, Appellant, v. Isadore BURDICK, Personal Representative of the Estate of Samuel Burdick, Deceased, Appellee.
• Docket Number: No. 80-1551,80-1551
• Decision Date: 02 June 1981

Page 410

399 So.2d 410 Doris BURDICK, Appellant,
v.
Isadore BURDICK, Personal Representative of the Estate of Samuel Burdick, Deceased, Appellee. No. 80-1551. District Court of Appeal of Florida, Third District. June 2, 1981.

Page 411

Allen Kornblum, Hialeah, and Larry Rothenberg, Pembrook Pines, for appellant.

Malspeis, Lococo, Brown & Schwartz and Jay D. Schwartz, N. Miami, for appellee.

Before BARKDULL, NESBITT and BASKIN, JJ.

BASKIN, Judge.

The resolution of this appeal from an order denying a widow's residence homestead status on the ground that her husband had abandoned the homestead prior to his death depends upon an unusual set of circumstances. We hold that the trial court erred in failing to apply the law of the case established by prior court orders, and we reverse.

Samuel and Doris Burdick lived in a home in Coral Gables. He was forced to undergo surgery for the removal of a tumor. Six months later he left the residence following a "spat", telling Mrs. Burdick that he had taken care of everything, that she had nothing to worry about, and that he would be back. He left most of his clothing and medicine behind. He continued to pay mortgage and utility bills, pool service, insurance, and waste fees as well as payments to prevent interruption of the Miami Herald delivery service. For approximately three months, he lived in an apartment under a one-year lease. Subsequent to another period of hospitalization, he stayed with friends for two weeks. He was again forced to return to the hospital, where he died. No other evidence was presented concerning whether he intended to return to his home. On these facts, the trial court ruled that Mr. Burdick had abandoned the homestead and that the property became an asset of the estate.

Page 412

Homestead exemption is provided by the Florida Constitution (1968), Article X, Section 4:

HOMESTEAD: EXEMPTIONS (a) There shall be exempt from forced sale ... the following property owned by the head of a family:

(1) a homestead ... upon which the exemptions shall be limited to the residence of the owner or his family;

(2) personal property to the value of $1,000.

(b) These exemptions shall inure to the surviving spouse or heirs of the owner.

(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child....

Additional provisions relating to homestead appear in sections 732.401 ¹ and 732.4015, ² Florida Statutes (1977).

In order to be entitled to maintain homestead status on the residence, a wife must not only survive her husband but must also have been a party to a family relationship in existence at the time of the husband's death. In addition, the residence must have been occupied by the family at the time of the husband's death. In re Estate of Van Meter, 214 So.2d 639 (Fla. 2d DCA 1968), aff'd, 231 So.2d 524 (Fla.1970). A legal duty to support and continued communal living evidence the existence of a family relationship. In re Estate of Van Meter, supra. Homestead status may be waived by abandonment. Nelson v. Hainlin, 89 Fla. 356, 104 So. 589 (Fla.1925); Beensen v. Burgess, 218 So.2d 517 (Fla. 4th DCA 1969). When homestead status has been acquired, it continues until the homestead is abandoned or alienated in the manner provided by law. Marsh v. Hartley, 109 So.2d 34 (Fla. 2d DCA 1959). Continuous uninterrupted physical presence is not required to create a homestead. Poppell v. Padrick, 117 So.2d 435 (Fla. 2d DCA 1959). Each case must be decided on its own particular circumstances. Marsh v. Hartley, supra.

With these principles in mind, we have examined the record before us. The case originally fell before a predecessor judge on Petition to Set Aside Homestead and Exempt Property, Petition for Family Allowance and Election to Take...