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 opinions.
The linked-to case addressed the following common estate-planning scenario:
Widowed father wants to make sure his second wife has the right to live in the house he purchased and paid for years prior to the second marriage, but also wants to make sure that when he and second wife die, the house goes to his children, not second-wife’s children from a prior marriage.
This estate plan is simple enough, and if done properly, works all the time. In the linked-to case the “widowed father” apparently decided to save a few bucks in legal fees by doing his own legal work. The following facts of the case are all you need to know to see that by being “penny wise” he was setting his estate up for litigation from the get go (which is exponentially more expensive than simple estate planning).
2d DCA describes discombobulated deed:
The preprinted form warranty deed Mr. Clemons executed described the homestead property and named himself and “Ruth Clemons his wife” as grantees. But the deed contained a typewritten provision immediately following the property description, entitled “Addition to This Instrument,” which stated:
The parties of the second part, W.C. Clemons Jr. and Ruth Clemons Witness that the death of the last surviving party of the second part [sic] shall be cause to convey and confirm and assign forever all that certain parcel of land described above to Joyce M. Thornton.
Mr. Clemons died intestate some seven years later, survived by his widow and lineal descendants, including Joyce M. Thornton. By deed dated January 6, 2004, Mrs. Clemons purported to convey the property to herself and Lloyd Gilpin, Jr., her grandson. Ms. Thornton then sued for declaratory and other relief.
The key facts to note are: deed was executed after second marriage, and second wife did not sign the deed. When this deed eventually became the subject of litigation (surprise?!), the 2d DCA unwound the deal by addressing the following 4 questions.
1st Question: Did the deed validly convey a life estate to grantor and his wife? YES
The trial court and 2d DCA both said “yes.” Here’s how the 2d DCA explained the Florida homestead law governing this point:
Mr. Clemons’s grant of a life estate to himself and Mrs. Clemons as tenants by the entireties was a valid conveyance. See Matthews v. McCain, 125 Fla. 840, 170 So. 323, 325 (Fla.1936) (holding husband and wife may hold life estates as tenants by the entireties). Like the provision on the books today, section 689.11, Florida Statutes (1993), allowed conveyances of real property, including homestead property, between spouses, and did not require the grantee spouse to join in such conveyances. The summary judgment correctly confirms the existence of a life estate in Ruth Clemons, widow of her erstwhile cotenant by the entireties.
2d Question: Did the deed validly convey a remainder interest to the daughter, in the absence of joinder by the wife? NO
The trial court concluded that the grantor clearly “intended” to convey a remainder interest in his home to his daughter, and ruled that the deed accomplished the grantor’s stated intent. For those of us who follow Florida’s homestead laws (and aren’t embarrassed to admit it), it’s no surprise to see once again that what people “want” to do with their homes often bears no relation to what Florida law requires. That’s what happened in this case, and the 2d DCA reversed the trial-court on this point as follows:
But Mr. Clemons’s attempt to convey the remainder interest to Joyce M. Thornton was ineffective without Mrs. Clemons’s joinder. Florida’s Constitution requires that both spouses join in alienating homestead property in favor of any third party. See Art. X, § 4(c), Fla. Const. Interpreting the constitutional provision, our supreme court has noted that “it is clear that both [spouses] must join in a conveyance of a homestead owned by one spouse to a third party.” Jameson v. Jameson, 387 So.2d 351, 353 (Fla.1980) (quoting Note, Our Legal Chameleon is a Sacred Cow: Alienation of Homestead under the 1968 Constitution, 24 U. Fla. L.Rev. 701, 705-07 (1972)). A purported transfer of the homestead, not in compliance with constitutional requirements, is void. See Robbins v. Robbins, 360 So.2d 10, 11-12 (Fla. 2d DCA 1978), appeal dismissed, 365 So.2d 714 (Fla.1978); Gotshall v. Taylor, 196 So.2d 479, 481 (Fla. 4th DCA 1967), cert. denied, 201 So.2d 558 (Fla.1967). Mr. Clemons’s attempt to convey the remainder interest in the homestead to Ms. Thornton by the deed he executed on February 23, 1993, did not succeed, because Mrs. Clemons did not sign the deed.
3d Question: If the deed is invalid as to the conveyance of a remainder interest, was the life-estate conveyance to second wife also invalidated? NO
This third point makes clear that a deed can be partially valid, and partially invalid. In other words, it’s not an all or nothing proposition. Here’s how the 2d DCA explained this point:
The fate of the intended grant of the remainder interest has no bearing on the validity of the grant of the life estate. See generally W.W. Allen, Annotation, Prior estate as affected by remainder void for remoteness, 168 A.L.R. 321, 322 (1947) (“[P]rovisions of a … deed, valid in themselves, are as matter of course to be given effect notwithstanding the invalidity of other provisions, unless … to permit the valid to take effect without the invalid would produce results presumably objectionable to … [the] grantor.”); see also Leffler v. Leffler, 151 Fla. 455, 10 So.2d 799, 804 (Fla.1942) (en banc) (“Where the will provides for successive estates the invalidity of one may not affect the others as for example, the invalidity of a trust in remainder may not affect the validity of a trust for the life tenant ….”) (quoting Schouler on Wills, Executors and Administrators, Vol. 2, 6th ed., par. 902, pp. 1039-41).
4th Question: What happens to invalidly conveyed homestead property?
This last issue is probably of most interest to probate counsel. Here’s the “estate plan” Florida law imposes on your homestead property in the absence of a legally-effective deed/will.
Mr. Clemons retained the remainder interest as his sole property, because the deed was ineffective to convey it. When the fee owner of homestead dies intestate “survived by a spouse and lineal descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the lineal descendants in being at the time of the decedent’s death.” § 732.401(1), Fla. Stat. (2000). The failure of Mr. Clemons’s attempt to convey the remainder interest to Ms. Thornton redounded to the benefit, not of Mrs. Clemons, but of Mr. Clemons’s lineal descendants, including Ms. Thornton. Only if Ms. Thornton (and her descendants, if any, see § 732.104, Fla. Stat. (2000) (“Descent shall be per stirpes ….”)) had been Mr. Clemons’s sole survivor(s), would the summary judgment be affirmable in toto-and she has pleaded the existence of other survivors. Upon his death, the remainder vested in his lineal descendants, per stirpes, pursuant to sections 732.104 and 732.401(1), Florida Statutes (2000).