Homestead Litigation

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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.
Continue Reading DCAs in conflict . . . can freely devisable homestead property be used to satisfy pre-residuary bequests? Fourth DCA says YES, Second DCA says NO, Florida Supreme Court ruling awaited

Collinson v. Miller, 2005 WL 840188 (Fla. 2 DCA April 13, 2005) (TRIAL COURT REVERSED) This case should be kept in your files and shared with clients who would rather skip any type of formalized planning for what is in all likelihood their single largest asset – their homestead property – and opt instead for some sort of unwritten “trust me” estate plan. In terms of technical guidance, you may also want to keep this one on the shelf and refer back to it the next time you need to wade into the legal thicket surrounding exactly what “constructive trusts” are, when they are used, and when they don’t apply. This case involved a second marriage where both spouses had children from previous marriages (this fact alone should instantly trigger alarm bells). “Husband” purchased waterfront property and built a home on the property. The idea was that if “Wife” survived Husband, she would be able to use the home for the rest of her, but at her death the house (which was valued at over $2.2 million in Wife’s estate) would go to Husband’s children.
Continue Reading Why “Trust Me” Estate Planning Can Be Disastrous When it Comes to Homestead Property