Florida Appellate Court Reverses Order Upholding Invalid Devise Of Homestead In Decedent’s Will

In Ballard v. Pritchard, a December 22, 2021 opinion from the Florida Second District Court of Appeal, the Court reversed an order of homestead upholding an invalid devise of homestead under Decedent’s will.

The Facts of Ballard v. Pritchard

Decedent, Juanita Carter, passed away on February 17, 2002.  At her death she owned a residence that was her homestead.  Decedent was survived by her spouse, Pinkney Carter, and two adult sons, Robert and Ronald.

Decedent’s will devised a life estate in her residence to her surviving spouse, with the remainder to Ronald in fee simple.  The residue of Decedent’s estate was devised to her sons in equal shares.

Robert died in February 2017, survived by Lindsay Ballard, his sole heir.  Pinkney (Juanita’s surviving spouse) died on February 24, 2019.

In May 2020, Ronald filed a petition for summary administration of Juanita’s estate, with the only asset being the subject property.  Ballard, Robert’s heir, filed a petition to determine homestead status of the property.  Ballard alleged that Juanita’s residence was homestead property and that the devise of the homestead was invalid under section 732.4015, Florida Statutes (2002).  Ballard contended that the homestead descended on the date of Juanita’s death pursuant to section 732.401 with a life estate to Decedent’s surviving spouse, and with the remainder to Ronald and Robert.

In response, Robert asserted that a devise of a life estate to the surviving spouse was valid under section 732.4015(1).  He asserted that if a life estate in homestead property is bequeathed to the surviving spouse, then the remainder interest can be bequeathed to anyone.

The Florida probate court entered an order determining that the Decedent’s real property was her homestead, and that on Decedent’s death the title to the property descended to her spouse until his date of death on February 24, 2019, and then to the Decedent’s son Ronald as of February 24, 2019.  Ballard appealed the order determining homestead.

Limitations On Devise Of Homestead Property In the Florida Constitution

The Florida Constitution limits the devise of homestead property. Article X, § 4(c) states:

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.

Florida Statutes section 732.4015(1) states:

As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except that the homestead may be devised to the owner’s spouse if there is no minor child.

In contrast, when no spouse or minor child survives a decedent, “no constitutional restriction on the devise of the homestead” exists. Webb v. Blue, 243 So. 3d 1054, 1057 (Fla. 1st DCA 2018).

What Happens When a Homestead Devise Is Invalid Because It Violates The Florida Constitution?

When a devise is invalid because it violates the Florida Constitution and section 732.4015(1), the homestead descends via intestate succession under section 732.401(1) of the Florida Probate Code.

Section 732.401(1) provides as follows:

If not devised as permitted by law and the Florida Constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and lineal descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the lineal descendants in being at the time of the decedent’s death per stirpes.

If a devise of Florida homestead is invalid, the intent of the testator as expressed in the will does not trump the Florida Constitution.  The Court stated:

In In re Estate of Finch, the petitioner argued that neither the constitution nor statutes should frustrate the decedent’s expressed intent to devise a life estate in his homestead to his spouse with a vested remainder interest to one of his two adult daughters. 401 So. 2d at 1309. The Florida Supreme Court disagreed. Id. The court adopted the Fourth District’s position and held that when “a testator dies leaving a surviving spouse and adult children, the property may not be devised by leaving less than a fee simple interest to the surviving spouse.” Id. (quoting In re Estate of Finch, 383 So. 2d 755, 757 (Fla. 4th DCA 1980)). Similarly, here the Decedent was restricted to devising a fee simple interest in her homestead to her spouse, despite the intent she expressed in her Will.

A Surviving Spouse Can Waive Homestead, But Waiver Must Be Knowing and Intentional

Appellee made vague reference to a waiver of the homestead interest by the surviving spouse.  The appellate court dismissed this argument, stating:

As to the waiver argument, the sons each had a vested remainder interest in the property at the time of the Decedent’s death in 2002. When an owner is survived by a spouse or minor child, the homestead passes outside of probate at the time of the owner’s death. 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, in a twinkle of an eye, as it were, to his wife for life, and thereafter to his surviving sons, James and Jonathan per stirpes.” (citations omitted)); see also White v. Theodore Parker, P.A., 821 So. 2d 1276, 1279 (Fla. 2d DCA 2002) (“Florida courts have continued to hold that homestead does not become part of the probate estate unless a testamentary disposition is permitted and is made to someone other than an heir, i.e., a person to whom the benefit of homestead protection could not inure.”). In addition, “homestead rights exist and continue even in the absence of a court order confirming the exemption.” White, 821 So. 2d at 1280. Petitions to determine homestead property “are similar to actions for declaratory relief that explain or clarify existing rights rather than determine new rights.” Id. Further, equitable principles such as waiver or estoppel “cannot operate to nullify a homestead interest.” Rutherford v. Gascon, 679 So. 2d 329, 331 (Fla. 2d DCA 1996). Rather, to find a waiver of homestead protection by a surviving spouse, “evidence must demonstrate the survivor’s intent to waive the constitutional and statutory claim to homestead property.” Id. (citing In re Estate of Cleeves, 509 So. 2d 1256, 1259 (Fla. 2d DCA 1987)).

Here, Robert’s vested remainder interest in the homestead came into existence at the moment of the Decedent’s death, and waiver principles do not apply.  Decedent’s intent as expressed in the will via the attempted devise of the homestead therein does not control over the provision in article X, section 4(c), of the Florida Constitution and section 732.4015. Therefore, the homestead did not pass via the Decedent’s Will; rather, it passed via section 732.401(1) immediately upon the Decedent’s death to her spouse for life with a vested remainder interest in each of her sons, Ronald and Robert, per stirpes. The Florida appellate court reversed the probate court’s order determining homestead that determined that the house ultimately passed to Ronald under Decedent’s will.

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