Daily Development for

Friday, October 3, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

HOMESTEAD; INTENT TO MAINTAIN; EXTENT OF FAMILY: Homestead is presumed to continue unless and until contrary is shown; and thus, burden is on party attempting to defeat homestead to show it no longer exists.

Matter of Estate of Phillipe, 933 P.2d 151 (Kan. Ct. App. 1997).

After his wife's death, the decedent was diagnosed with cancer and eventually moved out of his home into a nursing home when his adult son, who had moved back into his parent's home following a divorce, could no longer provide necessary care. The son remained living in the home. After the decedent's death, the State sought to recover for medical assistance provided to the decedent. The son claimed a homestead exemption for the house, and the State contested the exemption. The trial court ruled in favor of the son, and the State appealed.

On appeal: Held: Affirmed. Since a homestead is presumed to continue until the contrary is shown, the State had the burden of proving by positive and clear evidence that the decedent had abandoned the homestead.

The court upheld the trial judge's taking of judicial notice that "there isn't a person that ever went into a care home that didn't want to come home," and found that the State's evidence, consisting only of a showing that the decedent had stopped filing for a homestead tax exemption after moving into the nursing home, was insufficient to show a lack of intent not to return to the homestead. Thus, the State had not met its burden. The court also held that "family" is liberally construed for purposes of homestead law and that there was no requirement that a child occupy the homestead continuously from minority, nor was there any requirement that the child be dependent upon his parents to be considered a member of the family for purposes of homestead law.

Comment: The homestead exemption in general seems premised upon the notion that there are special human value in one's home that the state ought to protect. The value appears to be as much psychological as real, and for that reason recognizing the significance of the home even when one has been forced to leave it for reasons of illness seems appropriate. If the illness is chronic, and lasts many years, of course the court's reasoning gets stretched thin, but the basic psychological relationship can still be recognized.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Walter at the ABA. (312) 988 5260 or stacywalter@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.