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Homestead Rights

Homestead is a valuable right, interest, or estate in land which vests in the widow during her natural life unless and until abandoned or forfeited by the widow[i].  It is the portion of one’s property used primarily as a residence.

In some States a homestead is not subject to partition[ii] and in others it can be partitioned.  Except for homestead property, the right to partition property is absolute[iii].  A debtor has the right to have the homestead exempted from levy and forced sale.

A widow has a right to continue to occupy property as a homestead to the exclusion of others and the same is not subject to partition without her consent so long as she elects to so occupy it[iv].

As per one jurisdiction, partition of a homestead may only be had when the widow marries or when all of the children arrive at the age of majority[v].  If the mother remains a widow, there can be no partition until all of the children arrive at majority.  She may then be allowed one-half of the value of the property, the other half going to the children.  In case the widow marries and a division of the homestead is had, the half set off to the children would still be their homestead.

Homestead exemption statutes, sometimes in the form of state constitutional provisions, are intended to secure to the person owning the household a home for himself/herself and his/her family, and, in case of death, for surviving members of the family.

Homestead exemptions are determined by the statutes in force at the time of the husband’s death[vi].  Further, under some jurisdictions, the homestead exception applies only to property held by divorced persons as tenants by the entirety and not to property held as tenants in common[vii].

The homestead exemption, during the lifetime of the owner, is not an estate but is a personal privilege which must be claimed to be effective, and hence it is subject to waiver[viii].  A surviving spouse can waive homestead rights, if done in writing, either before or after marriage[ix].

There may be a partition or a sale for division when a surviving spouse abandons the homestead, in spite of the existence of minor children.  However, the mere fact that a surviving spouse no longer lives in the homestead property does not mean that it has been abandoned so as to make partition proper.

Where an ex-wife held real property as a joint tenant with her former husband, from whom she was separated, the wife was permitted to maintain an action to partition the property, even though the husband continued to reside in the property and claimed it as his homestead.

Where a decedent is survived by a spouse or lineal descendants, homestead property is not regarded as an asset of the estate and is not subject to administration by a personal representative[x].  Under such circumstances, the homestead passes to the heirs completely outside of the will, by operation of law.

The heir of a decedent leaving a widow is not entitled to partition against her nor can the heirs have partition pending the paramount right of the widow to homestead[xi].  Where a man is a cotenant of property when he dies, then the other cotenants may seek partition after his death, even if the property is claimed by his widow as her homestead[xii].

Where a building, occupied by a family, is suitable for a home and is used for that purpose, the fact that a part of the building is used for supplementing the family income does not afford a basis for depriving the owner of his homestead rights[xiii].

Thus the characteristics of a homestead right include the following[xiv]:

  • the right is purely personal to the widow and minor children of decedent;
  • it is individual and indivisible;
  • the rents and profits from the land are vested in the widow;
  • a widow is not required to live upon the homestead premises;
  • remarriage does not deprive a widow of her homestead rights;
  • a widow’s homestead rights being personal, her interest is not transferable, and a sale by her of the homestead interest or of the lands affected by the homestead estate conveys nothing to the grantee but amounts to an abandonment of the homestead by the widow, which gives the heirs a right to the immediate possession; and
  • a widow may also abandon her homestead rights if the heirs seek partition and she does not assert her rights.

[i] Gibson v. Gibson, 264 Ark. 420 (Ark. 1978).

[ii] Hammons v. Hammons, 300 Mo. 144 (Mo. 1923).

[iii] Morris v. Figueroa, 830 So. 2d 692 (Miss. Ct. App. 2002).

[iv] Ellis v. Patrick, 93 S.W.2d 1201 (Tex. Civ. App. 1936).

[v] Towle v. Towle, 81 Kan. 675 (Kan. 1910).

[vi] Bedsole v. Bedsole, 272 Ala. 589, 590 (Ala. 1961).

[vii] Padgett v. Haston, 279 Ark. 367 (Ark. 1983).

[viii] In re Estate of Moore, 210 Ore. 23 (Or. 1957).

[ix] Wadsworth v. First Union Nat’l Bank, 564 So. 2d 634 (Fla. Dist. Ct. App. 5th Dist. 1990).

[x] Monks v. Smith, 609 So. 2d 740 (Fla. Dist. Ct. App. 1st Dist. 1992).

[xi] Hamby v. Hamby, 165 Ala. 171 (Ala. 1910).

[xii] Allen v. Smith, 282 Ark. 401 (Ark. 1984).

[xiii] Bodden v. Community Nat’l Bank, 271 Cal. App. 2d 432 (Cal. App. 5th Dist. 1969).

[xiv] Gibson v. Gibson, 264 Ark. 420 (Ark. 1978).

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