New Homestead Decision in the Third District

In Walters v. Agency for Health Care Administration, --- So.3d ---- (2019), 2019 WL 4656114, the Third District examined the ongoing saga of Article X, section 4 of the Florida Constitution and its application to homestead. The per curiam opinion cited Wartels and Philips v. Hirshon.  Both cases  involved an invalid devise (Art. X, s. 4(c)). There is a clear conflict with the 2^nd DCA decision in Geraci v. Sunstar EMS.  The Geraci decision involved a creditor claim (Art. X., s. 4(b)) against a cooperative unit that was on land structured as a condominium. The court described it as  a condominium, went on to distinguish the Wartels  decision by saying a cooperative unit is not an interest in real estate.  The ultimate holding in Geraci was that Wartels only applies to cases involving the restrictions on devise that protect surviving spouses and children.  Devise restrictions and creditor protection both involve the same definition of homestead.  The Geraci court specifically declined to follow Wartels and said the protection from creditor claims does not require fee simple ownership. 

In this case, the trial court declined to apply the homestead exemption to the condominium based on its determination that the homestead protection at issue is actually that of descent and devise. The court appeared to recognize that the condominium may qualify as homestead for purposes of the homestead exemption from forced sale but explained that, in the context of descent and devise, the supreme court has held that the property interest must be a fee simple interest in land. See In re Estate of Wartels, 357 So. 2d 708, 710 (Fla. 1978) (holding that a co-op is not a homestead for purposes of descent because it is not "an  [**6] interest in realty").

The Florida Supreme Court accepted jurisdiction for the conflict between Wartels and Geraci, but then dismissed jurisdiction. It will be interesting to see if they do the same thing with this case.  I truly hope that they make a ruling. If accepted, this will be the 4^th time the Florida Supreme Court has been asked to address conflicts between Wartels and the cases involving creditor protection under Article X, s. 4.  There are factual distinctions in every case and that could be the reason that the court has declined to provide further guidance on the status of cooperative units for purposes of the constitutional homestead protections. 

RPPTL Section Meetings in Miami



I am in Miami for meetings of the Real Property, Probate and Trust Law Section of The Florida Bar. Today I attended committee meetings for the Asset Protection Committee, the Probate and Trust Litigation Committee, the Probate Law and Procedure Committee, and the Guardianship and Advance Directives Committee.  Attorneys from across the state gather to discuss developments in the law and ways to best serve our clients.  The exchange of ideas, knowledge and experiences is amazing.  I always return home thinking about how fortunate I am to be part of such a great group of dedicated professionals.

The importance of title to homestead property "vesting" at the instant of the owner's death.

Decisions involving Florida's homestead protections continue to show the need for careful analysis of the probate issues when a Florida resident dies owning a primary residence. The protections in the Florida Constitution have protected families since at least 1868, but continue to perplex planners and probate attorneys. In a recent case, the parties signed consents for an order involving a homestead residence. The order was not consistent with the deceased owner's Last Will and Testament. The appeals court reminded us about one of the cardinal rules for homestead issues in probate proceedings: Title vests at the moment of death; the will (or the laws of intestacy) controls the transfer of ownership at death and an incorrect homestead ruling by the court does not change the vesting of title. Without an proper agreement among heirs altering the disposition in the will, consenting to a petition in a probate proceeding does not alter the ownership interests of the heirs that vested at the instant of the owner's death. The decision in Mullins v. Mullins can be found here: https://www.5dca.org/content/download/526765/5852394/file/181672_1260_06072019_08253237_i.pdf