Can you Fix an Invalid Homestead Bequest in Florida?

Florida’s homestead laws are tricky.  A homestead is defined in the Florida Constitution, at Article X, as a primary residence sitting on 160 acres of contiguous land, or one-half acre within a municipality.  When a Florida resident dies with homestead property, the Florida Constitution restricts how the homestead can be bequeathed.

(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.

Florida Constitution, Article X, Section 4(c).

So what happens when a bequest violates the Florida Constitution?  Florida Probate Code Section 732.401 provides the answer:

(1) If not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes.

In Stirberg v. Fein, 4D22-854 (4th DCA 2023) the Decedent conveyed his Florida homestead property to something called a Residence Trust.  Pursuant to the Trust’s terms, the Decedent’s spouse was entitled to a life estate, with the power to appoint the remainder interest to her grandchild.  Her grandchild was not the Decedent’s grandchild.  This bequest violated the Florida Constitution because the Decedent was married without minor children and did not devise the homestead to his spouse in fee simple.   As explained by the Court [incorrectly, because the following bold statement does not take into account minor children]:

Thus, any devise of homestead property that does not grant a fee simple interest to a surviving spouse fails, regardless of intent.

The Decedent’s children rightly claimed the remainder interest in the property.  The trustee of the Residence Trust filed a reformation action, to reform the Residence Trust such that it would give Valerie, the surviving spouse, the residence in fee simple and free of trust, retroactive to the date of Decedent’s death.

The Court first noted the general law of reformation:

A party seeking trust reformation must establish “that the trust, as written, does not reflect the settlor’s intent.” Reid v. Estate of Sonder, 63 So.3d 7, 10 (Fla. 3d DCA 2011); see also Baldwin v. Estate of Winters, 944 So.2d 437, 439 (Fla. 4th DCA 2006) (“[T]he polestar to will interpretation is the intent of the testator.”)

In noting that this case is not like a general reformation case, the Court denied the reformation action, explaining as follows:

Homestead property rights vest immediately upon the death of a testator or settlor. See Aronson v. Aronson, 81 So.3d 515, 519 (Fla. 3d DCA 2012) (“At the moment of Hillard’s death, his homestead property passed outside of probate.” (citations omitted)); § 736.1109(1), Fla. Stat. (2022) (“If a devise of homestead under a trust violates the limitations on the devise of homestead in s. 4(c), Art. X of the State Constitution, title shall pass as provided in s. 732.401 at the moment of death.”).

Not even a retroactive action can validly cure a devise violating the homestead laws. See Gotshall v. Taylor, 196 So.2d 479, 481 (Fla. 4th DCA 1967) (“If the requirements of the Constitution and the statutes are not complied with in alienating homestead real estate, the attempt is a nullity . . . and is void ab initio, and subsequent events will not breathe life into it[.]”). A trust reformation is such a retroactive action and therefore cannot cure a devise violating the homestead laws. See Providence Square Ass’n, Inc. v. Biancardi, 507 So.2d 1366, 1371 (Fla. 1987) (“A reformation relates back to the time the instrument was originally executed and simply corrects the document’s language to read as it should have read all along.”).

For more information, please read the Complete Guide to Florida Homestead.

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

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Jeffrey H. Skatoff, Esq.

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