Estate of Mahaney v. Keefe, 2005 WL 924264 (Fla. 2 DCA April 22, 2005) (Trial Court Affirmed) It is not uncommon for a person’s single largest asset at death to be his homestead property. This is exactly what happened in the just decided Second DCA case, Estate of Mahaney v. Keefe (other than her home, decedent owned no other property of any value), and in the Fourth DCA case decided last year, Warburton v. McKean, 29 Fla. L. Weekly D1411 (June 9, 2004) (other than a condominium sold for $141,000, the decedent’s estate consisted of only nominal assets valued at $10,000). The question faced by both courts was whether freely-devisable homestead property could be used to satisfy pre-residuary bequests. The Fourth DCA said yes, the Second DCA said no. My understanding is that the Warburton case was heard by the Florida Supreme Court in early 2005, so we should have some resolution to this conflict in the near future. For the record, based on the basic principal that “freely devisable” homestead property should be controlled by a person’s will just like any other freely devisable asset, and the 1991 Florida Supreme Court ruling in City Nat’l Bank of Fla. v. Tescher, I think the Fourth DCA got it right in Warburton. Florida’s Constitution protects homesteads in this state in two ways that directly impact every Floridian’s estate plan . . . and should be considered by anyone drafting a Florida will. First, homesteads are creditor-exempt assets if they pass to a person’s heirs, i.e., they are not subject to the claims of the decedent’s creditors or the expenses of administering the decedent’s estate if the homestead passes to any person falling within the class of persons regarded as the decedent’s heirs under Florida law (Art. X, § 4(a) – (c), Fla. Const.). Second, Florida law mandates how homestead property is devised if the homestead owner is survived by a spouse or minor child (Fla. Statute Sections 2004->Ch0732->Section%20401#0732.401″>732.401 and 2004->Ch0732->Section%204015#0732.4015″>732.4015). Otherwise, the homestead is freely devisable (Art. X, § 4(c) , Fla. Const.). The confusion arises when litigants/courts confuse or fail to distinguish between the creditor-protection aspects of homestead property and the restrictions placed on bequests of homestead property when there are surviving spouses or minor children involved. Footnote 1 of the Fourth DCA’s opinion in Warburton reflects that the court understood that simply because freely-devisable homestead property is not part of the probate estate for creditor-protection purposes, does not mean that freely-devisable homestead property can’t be devised by the decedent just like any other asset controlled by his or her will.

By stating that the homestead property in this case was property of the estate, we are addressing only the particular situation presented in this case. We are not stating that freely devisable homesteads are subject to the claims of the decedent’s creditors or the expenses of administering his or her estate where the homestead passes to a recipient who is within the class of persons regarded as “heirs” under Snyder, 699 So.2d at 1004-05.

In Mahaney, the Second DCA failed to make the same distinction. Although stated in different terms, the Second DCA basically held that satisfying a pre-residuary bequest with freely-devisable homestead property somehow conflicted with the creditor protection benefits afforded to such property. As such, the Second DCA held that the probate court should basically ignore the clearly expressed provisions of the testator’s will and simply devise the homestead property to the residuary devisees . . . essentially cutting the pre-residuary devisee out of the estate. That’s an unfair result that turns what should be a benefit, i.e., Florida’s homestead protection laws, into one very big trap for the unwary.