Who Gets The House?
In light of skyrocketing real estate values in Florida, for most Floridians their single most valuable asset is their home. If a homeowner is survived by a spouse or minor children, his or her residence is protected homestead property under Florida’s Constitution (Art. X, § 4(c)) and Probate Code (F.S. §731.201(29)), and thus not subject to devise pursuant to F.S. § 732.4015. However, if the homeowner’s residence is NOT protected homestead property, one might be forgiven for assuming that the residence was “freely” devisable.
Not so fast said the Florida Supreme Court in McKean v. Warburton, 2005 WL 3601898 (Fla. September 8, 2005). If a homeowner that expects NOT to be survived by a spouse or minor children wants to make sure that his or her single most valuable asset at death can be used to satisfy pre-residuary bequests, the Florida Supreme Court’s holding in this case requires that the homeowner specifically provide in his or her Will that the homestead property be sold and added to the general probate estate. Specifically, the Florida Supreme Court provided the following drafting advice for all Florida estate planners:
We therefore . . . hold that where a decedent is not survived by a spouse or minor children, the decedent’s homestead property passes to the residuary devisees, not the general devisees, unless there is a specific testamentary disposition ordering the property to be sold and the proceeds made a part of the general estate.
Suppose one of the surviving children coerces the decedent into establishing a trust and funding it with all the homestead property (3 days before death) with only that one surviving child named as beneficiary of the trust. Does the decedent's other child not named in the trust lose all rights to the homestead property? There is no surviving spouse, but there are two surviving children. The last will, which predates the trust by about 20 years, named the two children as equal heirs.
Left Out - If the last will is the product of undue influence, fraud or duress then it is void. However, generally speaking, adult surviving children have no legal entitlement to their parent's homestead property (or any other portion of their parent's estate).