Florida Probate & Trust Litigation Blog

Florida Probate & Trust Litigation Blog

By Juan C. Antúnez of Stokes McMillan Antúnez P.A.

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Category Archives: Homestead Litigation

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2d DCA: Surviving spouse’s Homestead Rights vs. ex-spouse’s contractual rights under Marital Settlement Agreement. Who wins?

Posted in Homestead Litigation, Marital Agreements and Spousal Rights
Friscia v. Friscia, — So.3d —-, 2014 WL 4212689 (Fla. 2d DCA August 27, 2014) It’s not unusual for marital settlement agreements (“MSAs”) to pop up as major players in contested probate proceedings (see here, here, here), what is unusual — which makes this case a “must read” for probate lawyers — is how the MSA’s … Continue Reading

5th DCA: Does a trustee’s breach of fiduciary duty = “fraud” for equitable lien on homestead purposes?

Posted in Homestead Litigation
Hirchert Family Trust v. Hirchert, — So.3d —-, 2011 WL 2415787 (Fla. 5 Dist. Jun 17, 2011)   The one crack in the almost impenetrable shield protecting Florida homestead property from creditors is the amorphous "equitable lien" doctrine. In In re Gosman, 2007 WL 707365 (Bankr.S.D.Fla. Mar 05, 2007), the bankruptcy court articulated the following two-part test for determining … Continue Reading

Reliable, user-friendly homestead charts for the busy practitioner

Posted in Homestead Litigation
There’s a good reason why homestead litigation is a recurring theme on this blog: it’s a non-intuitive thicket of complexity that can trip up even the best and brightest lawyers and judges. One way to cut through this complexity is to rely on trustworthy charts that graphically summarize the key “do’s” and “don’ts” in a single easy-to-read snapshot. … Continue Reading

2d DCA: Can a condo subject to a 100 year lease = creditor protected homestead property for your heirs?

Posted in Homestead Litigation
Geraci ex rel. Geraci v. Sunstar EMS, — So.3d —- 2012 WL 2401793 (Fla. 2d DCA June 27, 2012) Once again we have a homestead case where the key to understanding what went wrong is is recognizing that one word: “homestead;” is used in three very different ways in Florida’s constitution: [1] Exemption from forced sale: … Continue Reading

3d DCA: If a foreign national doesn’t qualify for the homestead tax exemption, is he also automatically disqualified from claiming homestead creditor protection?

Posted in Creditors' Claims, Homestead Litigation
Grisolia v. Pfeffer, — So.3d —-, 2011 WL 5864806 (Fla. 3d DCA Nov 23, 2011) The key to understanding this case is recognizing that one word: “homestead;” is used in three very different ways in Florida’s constitution: [1] Exemption from forced sale: Article X, §4(a) and (b) [2] Descent and devise: Article X, §4(c) [3] … Continue Reading

2d DCA: Homestead rights evaporate at death if property was owned as a joint tenancy with right of survivorship

Posted in Homestead Litigation
Marger v. De Rosa, — So.3d —-, 2011 WL 252942 (Fla. 2d DCA January 28, 2011) A joint tenancy with right of survivorship (JTWROS) is a type of concurrent estate in which co-owners have a right of survivorship, meaning that if one owner dies, that owner’s interest in the property will pass to the surviving … Continue Reading

3d DCA: Does homestead property in marital trust lose its creditor protection?

Posted in Homestead Litigation
Aronson v. Aronson, — So.3d —-, 2010 WL 4226204 (Fla. 3d DCA Oct 27, 2010) In July of 1996 Mr. Aronson deeded his condo (located on Key Biscayne, FL) to his revocable trust.  Upon Mr. Aronson’s deth, his revocable trust created a life-time irrevocable marital trust for his spouse, remainder to his sons from a prior marriage. A few months … Continue Reading

New legislation cures Florida’s “homestead trap” for widows and widowers and resolves conflicting judicial decisions regarding post-death disclaimers of homestead rights

Posted in Homestead Litigation
Back in 2007 I wrote here about a provocative Florida Bar Journal article [click here] by renowned trusts and estates attorney Jeffrey A. Baskies sounding the alarm on the unfair economic burden borne by widows and widowers receiving life estates in homestead property and the inability of these surviving spouses to use partition actions to remedy … Continue Reading

1st DCA: Is Florida’s 3% annual homestead property tax cap constitutional?

Posted in Homestead Litigation
Lanning v. Pilcher, — So.3d —-, 2009 WL 1941210 (Fla. 1st DCA Jul 08, 2009) The “Save Our Homes” (SOH) amendment to Florida’s constitution sets a 3% maximum limit on annual valuation increases of homestead property for ad valorem tax purposes. Over time, the SOH cap has created huge disparities in property taxes paid by Florida residents vs. non-Florida residents. Consider … Continue Reading

4th DCA says NO to lien on homestead property to pay curator’s attorney’s fees

Posted in Homestead Litigation
Herrilka v. Yates, — So.3d —-, 2009 WL 1531772 (Fla. 4th DCA June 03, 2009) Homestead property is something probate lawyers deal with in almost every estate-administration  proceeding, but it’s NOT a probate asset. This disconnect is a source of never-ending client consternation and attorney heartburn. The linked-to case is a prime example. In this … Continue Reading

3d DCA: Getting paid for defending against an assisted-suicide/Slayer Statute claim . . . but hands off the homestead

Posted in Homestead Litigation
Estate of Shefner v. Shefner-Holden, — So.2d —-, 2009 WL 322153 (Fla. 3d DCA Feb 11, 2009) When is probate litigation a compensable "service" to the estate? There were two issues at play in the linked-to opinion. One was whether the PR’s were entitled to payment of their attorneys fees after successfully defending against a … Continue Reading

The Cutler En Banc Opinion: Is the Third DCA Eroding the Protection Afforded to Heirs Who Are to Receive Devises of Florida Homestead?

Posted in Homestead Litigation
The Winter 2009 edition of ActionLine contains a short article entitled The Cutler En Banc Opinion: Is the Third DCA Eroding the Protection Afforded to Heirs Who Are to Receive Devises of Florida Homestead? by Melbourne probate attorney Charlie Nash. Charlie’s article does a good job of dissecting the 3d DCA’s opinion in the Cutler case, which addressed the interplay between the … Continue Reading

3d DCA reverses itself, homestead property may be sold to pay adminisration expenses

Posted in Homestead Litigation
Cutler v. Cutler, — So.2d —-, 2008 WL 4057751(Fla. 3d DCA Sep 03, 2008) When I first wrote about this case the 3d DCA upheld a probate court order refusing to apportion any probate expenses to a devise of freely-devisable homestead property under the “inuring clause” of Article X, section 4(b) of the Florida Constitution, effectively frustrating … Continue Reading

Kelley’s Homestead Paradigm

Posted in Homestead Litigation
Coral Gables trusts-and-estates attorney Eric Virgil recently posted a PDF copy of Kelley’s Homestead Paradigm on the list service for the RPPTL section of the Dade County Bar Association.  This handy chart was developed by one of the deans of Florida probate law, Rohan Kelley, and is exactly the type of resource I like to … Continue Reading

1st DCA: Why do-it-yourself estate planning can lead to unintended consequences for homestead property

Posted in Homestead Litigation
Clemons v. Thornton, — So.2d —-, 2008 WL 624863 (Fla. 1st DCA Mar 10, 2008) When an appellate opinion comes along dissecting a discombobulated homestead deed and explaining "who" gets "what" when the dust settles, it’s gold because it’s like getting the answers to your final exam in advance.  The linked-to case serves up one of those … Continue Reading

4th DCA: Surviving spouse trapped by life estate she cannot afford

Posted in Homestead Litigation
Schneberger v. Schneberger, — So.2d —-, 2008 WL 373243(Fla. 4th DCA Feb 13, 2008) The linked-to case is the latest example of the lopped-sided unfairness resulting from how current Florida law treats life estates in homes.  Ft. Lauderdale attorney Jeffrey A. Baskies published in excellent article in the June 2007 edition of the Florida Bar Journal that … Continue Reading

FL SCT: “The homestead exemption protects not only the debtor, but also the debtor’s family and the State”

Posted in Homestead Litigation
Chames v. DeMayo, — So.2d —-, 2007 WL 4440212 (Fla. Dec 20, 2007) Within the probate context there are two aspects of Florida’s constitutional homestead protections that loom large: the debtor protections found in sections 4(a) and (b) of article 10 of the Florida Constitution; and the limitations on devise found in section 4(c) of article … Continue Reading

Florida Homestead Descent Examples

Posted in Homestead Litigation
Kristen D. Drake, JD, CFP, publishes Coast Law, LLC, an excellent Florida-specific blog focusing on estate planning matters.  Her goal is to is to build a "One-Stop Florida Homestead reference page," and she’s off to a great start.  For example, in her blog post entitled Homestead Descent Examples she provides a link to homestead-related case studies prepared by … Continue Reading