PS 01205.011 Florida

A. PS 90-003 RECOVERY OF SSI OVERPAYMENT FROM ESTATE - N~, KATREAN

DATE: August 20, 1990

1. SYLLABUS

Under Florida law, the purpose of the homestead exemption is to protect surviving family members from the forced sale of the family home to satisfy the debts of the head of the family. Hospital Affiliates of Florida, Inc. v. McElroy, 393 So.2d 25 (1981); Tullis v. Tullis, 360 So.2d 375 (1978).

(N~, Katrean - SSN ~ - CCIV [Williams] - to ARC, Progs., Atl., 08/20/90)

2. OPINION

In your memorandum you requested assistance in persuading the administrator of the estate of Katrean N~ to refund from estate assets a Supplemental Security Income (SSI) overpayment balance of $5,023.

According to the file, the original overpayment was $10,333.10. At the time of the death of Katrean N~, she had an ownership interest in residential (home) property. Two (2) other individuals, Jessica S~ and Jessica's aunt, Oddie F~, also have an ownership interest in the subject residential property. It is unclear from the file what relationship, if any, existed between the deceased, Jessica S~, and Oddie F~. It is also unclear whether any of the three (3) apparent owners of the subject property actually lived on the property. Jessica S~ has stated she owns a one-third interest in the property. The property has an approximate worth of $30,000 according to Jessica S~. There is no deed or other documentary evidence in the file describing the nature of the legal interest each of the alleged owners have in the property. According to an attorney representing the deceased's estate, the deceased Katrean N~'s share of the residential property is $10,000. According to an attorney representing the deceased's estate, the deceased had no other assets except her ownership interest in the residential property.

In response to a letter from the Social Security Administration requesting refund of the overpayment balance of $5,023, the attorney for the deceased's estate advised that the property at issue was homestead property and was exempt from claims of all creditors. Article 10 Section 4 of the Florida Constitution exempts a homestead from forced sale and lien provided such homestead is owned by the head of a family. The purpose of the homestead exemption is to protect the family home from forced sale for debts of the owner and head of the family. Tullis v. Tullis, 360 So.2d 375 (1978). Specifically, the purpose of the homestead exemption is to protect surviving family members. In re Noble's Estate, 73 So.2d 873 (1954). Homestead property is not chargeable with the decedent's debts or with the costs of administration. Estate of Murphy, 340 So.2d 107 (1976). Head of family status is satisfied if a person qualifies as a tenant by the entirely, a spouse or a person legally or morally obligated to support other family members. However, homestead property loses its character as exempt property when the head of a family dies unless one of his heirs assumes the status of head of the family and resides therein with other dependent family members. Wilson v. Florida National Bank & Trust Co. at Miami, 64 So.2d 309 (1953).

In the present action, the file is not sufficiently developed to determine whether or not the deceased would qualify for the status of head of family. It is unclear what the deceased's relationship was to the two (2) other apparent co-owners or any other persons who may have been living in the residential property. Further, it is not clear from the file whether co- owners or any other persons living on the subject property were dependent on the deceased. If the deceased did not have the status of a head of a family, the status of homestead died with the deceased, and there would be no basis for the estate to assert a homestead exemption. Hospital Affiliates of Florida, Inc. v. McElroy, 393 So.2d 25 (1981).

According to Jessica S~, the subject property will be given to someone other than Jessica or Oddie F~ once the property is released from probate. Since a gift of the property is envisioned by Jessica and Oddie following probate, it does not appear that the deceased has the status of head of a family and the homestead exemption would not be applicable to her interest in the property.

In order to determine whether a homestead exemption is applicable, the file should be further developed to determine (1) the relationship between the deceased and the other co-owners, (2) the nature of their ownership interests as reflected by the deed conveying an ownership interest to them, and, (3) the extent to which any of the other owners or other persons were living in the house and were dependent upon the deceased. Given this information, a determination can be made as to the applicability of a homestead exemption.

If such development does not support a homestead exemption, this matter should be considered for referral to the appropriate United States attorney for collection. However, the file does not reflect that the usual letter to the personal representative of the estate has been issued advising the personal representative of the personal liability such person may incur for distributing estate property inconsistent with 31 U.S.C. §3713(b). It is recommended that such a letter be sent to the personal representative if one has not been sent to date.


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PS 01205.011 - Florida - 04/16/2008
Batch run: 01/27/2009
Rev:04/16/2008