McKean v. Warburton, 2005 WL 2155180 (Fla. September 8, 2005) (4th DCA Reversed) REVISED OPINION: McKean v. Warburton, 2005 WL 3601898 (Fla. September 8, 2005) The Florida Supreme Court reversed this Fourth DCA decision permitting the distribution of freely devisable homestead property to satisfy a preresiduary bequest. For the reasons discussed here, I think the Florida Supreme Court got this one wrong, turning what should be a benefit, i.e., Florida’s homestead protection laws, into one very big trap for the unwary. In light of skyrocketing real estate values in Florida, for most Florida homeowners, 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 (2005->Ch0731->Section%20201#0731.201″>F.S. § 731.201(29)), and thus not subject to devise pursuant to 2005->Ch0732->Section%204015#0732.4015″>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 says the Florida Supreme Court. 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 will require 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 summed up its holding in this case as follows:

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.

The following appellate briefs were filed with the Florida Supreme Court for this case: