Before his death, Nat created a residence trust and conveyed his Florida apartment to it. The trust provided that, upon Nat’s death, the apartment transferred to Valerie for her life with a power of appointment in Valerie to exercise at her death to leave the remainder to her granddaughter. 

Any Florida probate attorney knows this cannot be done because Florida law restricts who may receive homestead property at death when there is a surviving spouse. The Florida Supreme Court has said:

“[W]here 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 …. This exception is exclusive and prohibits the testator from devising less than a fee simple interest to his surviving spouse under the circumstances presented herein.”

In re Finch’s Estate, 383 So. 2d 755, 757 (Fla. 4th DCA 1980)

The appellate court in the Stirberg case reconfirmed this ruling by saying:

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

Nat’s children claimed the trust provision violated the Florida Constitution’s homestead provisions, resulting in a void gift, so they filed a petition to determine homestead status of real property. 

In its opinion, the appellate court noted that homestead passes immediately on the date of death by saying:

“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.”).”

What’s interesting about this case is that the trustee of the residence trust attempted to fix the void trust provision by filing a separate trust reformation action, which almost worked: the trial court ordered reformation of the trust. But, the children appealed, and the appellate court sent the case back to the trial court, saying: 

“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.

“The Residence Trust conveyed to Valerie a life estate in the apartment with a power to appoint the remainder. Appellants have alleged that this conveyance violates constitutional and statutory homestead law. If they are correct, the Apartment would have passed as provided by section 732.401(1), Florida Statutes (2022)—a life estate to Valerie and a remainder to Appellants as the Decedent’s descendants.”

The case isn’t over yet. Now it’s up to the trial court to hear the petition to determine homestead status of real property filed by the children. Any predictions on who wins?

-James W. Martin, St. Petersburg, Florida, Probate Estate Attorney, April 30, 2023

For many decades, Florida law provided that the surviving spouse received half the estate* and the descendants shared the other half among themselves. This likely arose from public policy that both the surviving spouse and children needed assets to survive, but it also surprised many young couples. If a young father died without a will, half his estate would pass to his wife and the other half would go to a guardian for his minor children. Inheriting half the father’s assets at age 18 is probably not the best way to learn financial independence, so most parents made wills or held their assets in joint names as tenants by the entirety to avoid this result.

Along comes the 2011 Florida Legislature to the rescue. It enacted a law that amends the Florida Probate Code effective October 1, 2011 to provide that the entire estate passes to the surviving spouse if (a) the decedent died leaving a spouse and one or more descendants, (b) all of the decedent’s descendants are also the surviving spouse’s descendants, and (c) the surviving spouse has no other descendant.

It’s still a good idea for a young couple to make a will and to hold assets jointly as tenants by the entirety, but the new law will eliminate the surprise of a surviving spouse having to share assets with children when a spouse dies. It remains to be seen whether those children will be surprised to learn they get nothing.

*Actually, the law provides that, if all the decedent’s descendants are also descendants of the surviving spouse, then the spouse receives the first $60,000 before dividing the rest in half.

For example, the Florida Probate Code provides for elective share, homestead, and exempt property rights for surviving spouses. These rights are not often known to nonlawyers, which is why it is advisable for the surviving spouse of a deceased Pinellas County resident to hire a Pinellas County probate lawyer to advise him or her.