Most probate proceedings are uncontested family affairs. In almost all respects that’s a good thing. There’s one downside, however. Because there’s no one contesting anything (and thus keeping everyone on their toes), mistakes happen.

For example, a family might consent to a homestead order that’s actually contrary to the decedent’s will. If everyone impacted by the mistake agrees to undo it (or live with it), no harm no foul. On the other hand, fixing a mistake when there’s conflict can be tricky … as demonstrated in the following case.

Mullins v. Mullins, — So.3d —-, 2019 WL 2396753 (Fla. 5th DCA . June 07, 2019)

In this case a woman died survived by three adult children, two sons and a daughter. The decedent left instructions in her will that basically allowed her two sons to live in her home for as long as they got along, and when both decided they’d had enough, the house was to be sold and the proceeds split as “agreed” by her three children. This was a problem waiting to happen.

On appeal the 5th DCA construed mom’s will as devising a life estate in her homestead property to her two sons and a remainder interest to all three siblings. During the probate process the three siblings consented to entry of a homestead order that devised the property to all three siblings equally, omitting any reference to the life estate. That was a mistake.

Shorty after mom died one of the brothers “made it impossible for anyone else to occupy the property” prompting his two siblings to (very reasonably) seek a partition order from the probate judge forcing a sale (thus allowing everyone to peaceably go their separate ways). The brother who was causing the conflict cried foul, pointing to the life estate he’d inherited in the house under his mom’s will, which barred the kind of sale his siblings were now attempting to force on him. The two siblings that wanted the partition order ultimately prevailed at the trial-court level on the grounds that objecting-brother’s consent to the faulty homestead order was the equivalent of a written agreement under F.S. 733.815 waiving his life estate.

Does a signed “consent” = “written agreement” to altering your share of an estate? NO

It’s perfectly legal and acceptable for estate beneficiaries to enter into agreements among themselves divvying up inheritances any way they want; it’s their property, they can do with it as they please. And F.S. 733.815 provides a statutory vehicle for getting these deals done while the probate proceeding remains ongoing (as long as they’re in writing). So does a signed “consent” to a homestead order that’s at odds with the decedent’s will amount to a binding “written agreement” under F.S. 733.815 waiving property rights? NO, so saith the 5th DCA:

While “[h]eirs and beneficiaries may formally agree to alter their prescribed interests in an estate, … such an agreement must be in writing and comply with section 733.815, Florida Statutes.” Clifton v. Clifton, 553 So. 2d 192, 194 (Fla. 5th DCA 1989) (footnote added). The consents signed by Robert, Kenneth, and Carla state that each beneficiary “hereby consents to the Petition to Determine Homestead Property; consents to the entry of an Order Determining Homestead Property; waives service of Notice of Hearing upon the undersigned and consents to entry of such order ex-parte.” Conspicuously missing is any reference to an agreement to alter the interests, shares, or amounts to which Robert, Kenneth, and Carla are entitled under the will. See § 733.815, Fla. Stat. (2011). And as conceded by counsel, no contract between the three exists that would alter the interests, shares, or amounts to which they are entitled. Id. As such, the consents signed by Robert and Kenneth do not constitute an agreement to reject their life estates. The consents simply establish that the siblings consented to an order confirming their homestead exemption and nothing more.

Image source: How to Keep an Inheritance From Going to a Spouse During Divorce – WSJ.

In 1951 Florida added a provision to its Probate Code automatically cutting divorced spouses out of each others’ wills (F.S. 732.507(2)). In 1989 a similar provision was added to our Trust Code (F.S. 736.1105). And in 2012 the post-divorce automatic revocation rule was extended to non-probate transfers, such as pay-on-death payments from life insurance policies, annuities, employee benefit plans, and IRAs (F.S. 732.703, which I wrote about here when first adopted).

Does the timing of the marriage matter? YES

Either by design or oversight, there’s a key distinction between the older will and trust rules and the more recent non-probate transfer rule. For wills and trusts, the automatic revocation rule applies only if the marriage predates the operative document.

  • F.S. 732.507(2): … “a will executed by a married person …”
  • F.S. 736.1105: … “a revocable trust … executed by a husband or wife …”

For example, if your will or trust benefits your girlfriend, who you then marry and subsequently divorce, your ex’ keeps the inheritance (the marriage did not predate the will/trust). On the other hand, if you named this same girlfriend the beneficiary of your life insurance policy or IRA, she’s out of luck. For purposes of the non-probate transfer rule the sequence of execution and marriage doesn’t matter.

  • F.S. 732.703(2): “A designation made by or on behalf of the decedent providing for the payment or transfer at death of an interest in an asset to or for the benefit of the decedent’s former spouse is void as of the time the decedent’s marriage was judicially dissolved or declared invalid by court order prior to the decedent’s death, if the designation was made prior to the dissolution or court order.”

Gordon v. Fishman, — So.3d —- 2018 WL 4039135 (Fla. 2d DCA August 24, 2018)

In 2005 Ron Priever executed a will devising property to his then fiancé, Silvia Gordon. The couple married two years later, and subsequently divorced in 2013. Priever died two years after the divorce, leaving no children or spouse. He never revoked his 2005 will.

The decedent’s father claimed F.S. 732.507(2) automatically cut Gordon out of the will once she and the decedent divorced. Gordon pointed out the statute didn’t apply to her because she wasn’t married to the decedent at the time he signed his will. The probate judge ruled against Gordon anyway. Wrong answer said the 2d DCA. Here’s why:

The legislature’s use of the adjective “married” to modify “person” is a clear indication that it intended the “person” executing the will to be “married” at the time of execution.[FN2] Thus, section 732.507(2) applies only when the marriage predates the will. The decedent did not marry Ms. Gordon until about fifteen months after he executed his will. Section 732.507(2) does not apply here.

[FN2] Notably, the legislature’s use of the adjective “married” in section 732.507(2) differs from the statutes in other states—where the courts have determined the sequence of the execution of the will and the marriage was irrelevant—as the statutes in those states did not include the adjective “married” or any other language that required the testator to be married prior to the execution of the will. See, e.g., Davis v. Aringe, 292 Ark. 549, 731 S.W.2d 210, 211-12 (1987); In re Estate of Reeves, 233 Cal.App.3d 651, 284 Cal.Rptr. 650, 654 (1991); In re Estate of Forrest, 302 Ill.App.3d 1021, 236 Ill.Dec. 169, 706 N.E.2d 1043, 1045-46 (1999); In re Marriage of Duke, 549 N.E.2d 1096, 1099-1100 (Ind. Ct. App.), on reh’g, 552 N.E.2d 504 (Ind. Ct. App. 1990); Russell v. Johnston, 327 N.W.2d 226, 229 (Iowa 1982); In re Estate of Bloomer, 620 S.W.2d 365, 367 (Mo. 1981) (“The statute does not say ‘all provisions of any will made subsequent to the marriage and in favor of the spouse so divorced are thereby revoked.’ ”); In re Will of Reilly, 201 N.J.Super. 306, 493 A.2d 32, 33, 35 (1985); In re Estate of Knospe, 165 Misc.2d 45, 626 N.Y.S.2d 701, 702-03 (Surr. Ct. 1995).

Former U.S. Attorney General Janet Reno, who died in 2016, stands outside her home in Southwest Miami-Dade. [Bill Cooke | Special to the Tampa Bay Times (2002)]
When Janet Reno executed a trust in 2008, it was just a few years after she’d concluded her run as the second-longest serving Attorney General in U.S. history.

And what was top of mind for her? It wasn’t some grand plan to immortalize herself. Based on the text of her trust agreement, her focus was on what would happen to the family home once she was gone.

The Reno home:

When her mother died in 1992, Reno inherited the family’s built-by-hand, un-airconditioned, rambling Cracker-style house that had served as the launching pad for her career and remained an emotional touchstone for life. Here’s how the house and surrounding 3+ acres were described in a 2002 Miami Herald story:

The image of Reno’s marooned-in-the-tropics upbringing has become South Florida legend over the years, a tale whittled and polished in countless political speeches into one enduring symbol: the house. …

Once located as far west as her mother could build without hitting swamp land, the house now sits — unchanged and unbowed — in the heart of Kendall in suburban Miami, a leafy oasis at the end of an unmarked driveway. Ungainly on the outside, an unruly jumble on the inside, it was sturdy enough to weather Hurricane Andrew with the loss of just one shingle. (The lost shingle is nailed to the wall by the kitchen, enscribed: “Andrew, Aug. 24, ’92.”)

… In eight years as attorney general and 15 as state attorney in Miami, Reno has summoned up “the ranch” as proof of her Old Florida roots until the house has become virtually indistinguishable from the woman herself.

“Mother built it, and Daddy helped with the heavy work when he came home from work at night,” Reno says whenever she’s asked about the house. “That taught me that you can do anything you put your mind to, if you have some time.”

The dangers of “over” drafting:

A well-drafted trust agreement should be elegant, clear, and unambiguous; it should be organized, cohesive and thoughtful. Ironically, your client can be her own worst enemy when it comes to drafting her documents if there’s an issue she really, really cares about, which often leads to “over” drafting.

What I mean by over drafting is the tendency to treat a will or trust agreement like a long family letter vs. the carefully crafted, technical legal instrument it needs to be to avoid future disputes. That’s what I see in the Reno trust.

Reno never married or had children. The focus of her planning was instead on what was supposed to happen with the family home she herself had inherited from her mother. This concern is so important to Reno the word “homestead” gets repeated 18 times in her trust. Unfortunately, this gave rise to internal inconsistencies that ultimately lead to the outcome no one wants: intra-family litigation.

Reno v. Hurchalla, — So.3d —-, 2019 WL 3938297 (Fla. 3d DCA August 21, 2019):

Reno died on November 7, 2016. In Art. V.D. of her trust, the trustee is instructed to sell the Reno home and split the proceeds equally among her nieces and nephews if Reno’s brothers, Mark and Robert, predecease her (which they did).

Upon the death of MARK and ROBERT, in the event the homestead is still owned by the Trust, such property shall be sold and the proceeds of the sale, together with any other corpus and undistributed income still owned by the Trust shall be distributed to Settlor’s nephews and nieces, share and share alike, free of any Trust.

In Art. VI.C. of her trust, the trustee is given contrary instructions. In this section of the document the trustee is instructed to gift the Reno home to the University of Miami (UM) to be preserved “in perpetuity.”

Upon the death of Settler, in the event the homestead is still owned by the Trust, the Trustee shall offer to gift the homestead to the University of Miami upon such terms and conditions as the Trustee deems appropriate and in the best interest of the Trust … The University will preserve and maintain the homestead in perpetuity and may utilize the homestead for such uses as it deems appropriate so long as such use does not destroy the homestead or its unique character …

Following Reno’s death, one of her nieces claimed the trust should be construed as forcing a sale of the family home. The rest of the family sided with preserving the home. The case wasn’t framed as a trust-construction action, but was instead litigated as a cy-près proceeding involving an alternate gift to Miami-Dade College (MDC) following UM’s declination.

Cy-près Doctrine:

“Cy-près” is an old Norman French term meaning “as near as possible” or “as near as may be.” When a settlor’s original “charitable purpose” becomes impossible, impracticable, or illegal to perform, the cy-près doctrine, which has been codified in section 736.0413 of Florida’s Trust Code, allows a court to amend the terms of the trust as closely as possible to the original intention of the settlor to prevent the donation from failing.

When UM declined, MDC and the estate negotiated a Real Estate Transfer and Preservation Agreement and Trustee’s Distributive Deed effectuating the donation and preserving the Reno home. MDC’s south campus is just a half-mile away and the home’s expected to become an extension of the school’s environmental center.

Based on this agreement the trial court and the 3d DCA both ruled the Reno home should go to MDC instead of being sold. Here’s how the 3d DCA explained its rationale:

In the present case, the specified charitable donee had not “ceased to exist” when Ms. Reno passed away, but the statute’s use of the terms “impracticable” or “impossible to achieve” addresses the Successor Trustee’s alternative. The University of Miami’s declination to accept the charitable transfer made the original disposition impossible to achieve. But the Successor Trustee identified an even-closer charitable, educational institution to accept the gift and to comply fully with Ms. Reno’s conditions “in perpetuity,” respecting the “unique character” and “historical importance” of the Reno Homestead.

Article VII of the Trust, “Trustee’s Powers,” specified in section A that in administering the Trust, “the Trustee shall have all powers granted a trustee by the Statutes of the State of Florida and laws of Florida ….” One such statutory power is that conferred by the cy pres statute, section 736.0413, invoked by the Successor Trustee in this case.

After losing at the 3d DCA, the objecting niece asked the Florida Supreme Court to weigh in. Both sides filed briefs (see here, here). The Florida Supreme Court declined to intervene, which means the 3d DCA’s ruling stands.

Bonus: Drafting gift agreements that are enforceable by family members:

As explained in my write up of the Bower Foundation case, in the absence of a written gift agreement preserving standing for a donor’s family, they simply have no legal say in how the gift is administered in future years. For example, if MDC decided 10 years from now that the best way to “preserve” the Reno home was to build a parking garage over it, Reno’s family wouldn’t have standing to challenge that decision in court in the absence of a family-standing clause.

The Reno estate apparently anticipated this problem and incorporated a family-standing clause into both the gift agreement and the gift deed. Here’s an excerpt from the gift agreement:

Any action to remedy an alleged breach of the conditions set forth in this paragraph 3 must be brought in the Circuit Court in and for Miami-Dade County, Florida and shall only be brought by no less than a majority of the named beneficiaries identified in the second paragraph of Article III of the RENO TRUST. For this purpose, a majority in interest of the lineal descendants of a deceased beneficiary identified in the second paragraph of Article Ill of the RENO TRUST may constitute a required beneficiary referred to in the preceding sentence. However, before an action may be brought, COLLEGE must be given written notice detailing the alleged breach and be provided no less than thirty (30) days within which to cure or begin to cure the alleged breach.

If you’re a practicing trusts and estates attorney, sample documents vetted by well-represented parties in real life transactions are gold. You’ll want to add both of these documents to your tool box for future reference.

If a man dies intestate, any children he had while married are automatically considered his heirs, and entitled to a share of his estate as determined by F.S. 732.103. Not so for out-of-wedlock children. If those heirs want to claim a share of their father’s estate, and someone objects, they’re required to prosecute a paternity claim.

So can you prosecute paternity claims in probate proceedings? Yes, but only if the claim’s not time barred. Here’s the problem, F.S. 95.11(3)(b) imposes a 4-year statute of limitations for paternity actions, starting as of the date the putative child turns 18.

By the time paternity’s being litigated in a probate proceeding, the claimant’s almost always a middle aged adult. Which means F.S. 95.11(3)(b) effectively bars 99% of all paternity actions in probate proceedings … even if you have irrefutable DNA evidence.

The legislative fix came in 2009 when F.S. 732.108(2)(b) was amended for the express purpose of ensuring that F.S. 95.11 does NOT bar paternity actions in probate proceedings. As explained in the bill’s Legislative Staff Analysis, the change was intended to

allow a determination of paternity to be made in a probate proceeding solely for the purpose of proving heirship even if it is after four years from the date the child attained majority. Without this change, current case law prohibits a person from proving that someone is her father, even if she has hard scientific data proving it. Her brother, born to the same father but a different mother, could prove his heirship, if, for example, his parents participated in a marriage ceremony, even if the “marriage” is void. The comparative result is fundamentally unfair and depends entirely on the type of proof the two siblings have.

Are Florida’s courtroom doors closed to older Floridians seeking to establish paternity in probate proceedings, but wide open for everyone else? YES

Great, so problem solved right? Nope. The 2009 legislative change wasn’t retroactive. In other words, the new statute helps you only if your paternity claim wasn’t already time barred in 2009. It didn’t revive previously time-barred claims.

So if you happen to have been age 21 or younger in 2009 (i.e., your paternity action wasn’t already time barred), you’re good to go. On the other hand, if you happen to have been age 22 or older in 2009 (18 + 4 = 22), you remain forever time barred from adjudicating paternity in a Florida probate proceeding.

The reason for why the statutory change isn’t retroactive was explained by the 3d DCA in Rose v. Sonson (a similar paternity case I reported on here):

“[o]nce a claim has been extinguished by the applicable statute of limitations, the claim cannot be revived because a constitutionally protected property right to be free from the claim has vested in the defendant.” Id. at 1210; see also Wiley v. Roof, 641 So.2d 66, 68 (Fla. 1994) (“Once the defense of the statute of limitations has accrued, it is protected as a property interest just as the plaintiff’s right to commence an action is a valid and protected property interest…. Florida’s statute of limitations, section 95.011, bars all action unless commenced within designated times…. Once an action is barred, a property right to be free from a claim has accrued.”).

In Re: Estate of John E. Robinson, — So.3d —-, 2020 WL 697795 (Fla. 3d DCA February 12, 2020)

In the linked-to-case above a woman (“Michel”) claiming to be the daughter of a man who died intestate filed a petition seeking a blood sample of the decedent for DNA testing, which she claimed would establish he was her father. The decedent’s sister (“Robinson”) objected. The probate judge granted the request for DNA testing to establish paternity,

reasoning that “if there is a DNA sample that could scientifically establish whether or not John Robinson is the father, it would be … an extreme injustice for this not to occur.” The probate court emphasized that it was a court of equity …

One of the hardest lessons you learn over time as a practicing attorney is that just because an outcome seems unfair, doesn’t make it legally wrong. Justice Holmes is said to have once quipped that “This is a court of law, young man, not a court of justice.” And he was right.

But we’re all human (including judges), and the “unfair” consequences of random events beyond anyone’s control (such as, what age you happen to have been in 2009) can be awfully hard to ignore. So can a probate judge’s “equitable” powers be used to get around the law on the books, especially if that law isn’t particularly equitable to the person standing before the judge? Nope. So saith the 3d DCA:

Michel maintains that the probate court sits in equity and must do what is equitable. She argues that because Robinson raised the issue that she is not the decedent’s daughter, she should be given every opportunity to prove the opposite. While we are sympathetic to Michel’s argument, the probate court erred on rehearing when it invoked equity as a basis to ignore the statute of limitations and this court’s precedents of Rose and Dixon. As the Florida Supreme Court has explained:

[W]e cannot agree that courts of equity have any right or power under the law of Florida to issue such order it considers to be in the best interest of ‘social justice’ at the particular moment without regard to established law. This court has no authority to change the law simply because the law seems to us to be inadequate in some particular case.

Flagler v. Flagler, 94 So. 2d 592, 594 (Fla. 1957) (en banc). Where the legislature has provided “a plain and unambiguous statutory procedure … courts are not free to deviate from that process absent express authority.” Oreal v. Steven Kwartin, P.A., 189 So. 3d 964, 967 (Fla. 4th DCA 2016) (quoting Pineda v. Wells Fargo Bank, N.A., 143 So. 3d 1008, 1011 (Fla. 3d DCA 2014)).

Samad v. Pla, — So.3d —-, 2019 WL 1212338 (Fla. 2d DCA March 15, 2019)

One of the basic building blocks of Florida probate law is the mandatory life estate in homestead property all surviving spouses are entitled to under F.S. 732.401(1). Life estates are supposed to protect surviving spouses by guaranteeing them the “rent free” use of their homes for life.

As explained in a provocative 2007 Florida Bar Journal article entitled The New Homestead Trap: Surviving Spouses Are Trapped by Life Estates They No Longer Want or Can Afford, over time it became apparent that life estates come with all sorts of unintended consequences, sometimes turning what should be financial safety nets into costly burdens for widows and widowers.

The legislative fix came in 2010, when F.S. 732.401 was amended to allow a surviving spouse to opt out of a life estate and instead take a 50% tenancy-in-common interest in the homestead property. As explained in this Legislative White Paper, receiving a tenancy-in-common interest in lieu of a life estate offers significant benefits to surviving spouses.

Can “excusable neglect” get you an extension to file a late homestead election?

This new protective option for surviving spouses was balanced against Florida’s strong public policy favoring the speedy and final determination of probate proceedings by making it subject to a 6-month filing deadline. But how “hard” is this deadline?

Most probate deadlines are subject to some kind of extension if your judge decides there’s a good reason for why you were late. For example, F.S. 732.2135 allows a surviving spouse to file a late elective-share claim if a judge decides there was “good cause shown”. There’s no equivalent statutory “out” for late homestead claims under F.S. 732.401(2). This distinction was no oversight, it was intentional. Here’s an excerpt from the Legislative White Paper:

The time for making the homestead election differs from the provisions of Florida’s elective share statute. Consideration was given to the distinctions between the two elections. The surviving spouse potentially takes nothing under the elective share statutes if the time requirements are not met. The proposed changes to the homestead statute, by contrast, still provide the surviving spouse with a life estate if no election is made so the underlying constitutional policy is preserved whether or not an election is made. (Emphasis added.)

But what about probate rule 5.042? Under this rule if a judge decides you didn’t file something on time because of some kind of “excusable neglect” (such as secretarial oversight), she can usually grant you an extension.

Does rule 5.042(b) apply to F.S. 732.401? Until now we’ve never had an appellate court address that question. Now we do. And I think most probate lawyers will be surprised by the 2d DCA’s answer.

Case Study:

In Samad v. Pla, a widow filed an election under F.S. 732.401(2) to take a 50% tenancy-in-common interest in the homestead property about a month-and-half late. She then petitioned for an extension under probate rule 5.042 claiming excusable neglect. The probate judge agreed, and granted the requested extension. Wrong answer said the 2d DCA. Here’s why:

[R]ule 5.042(b)] provides, in pertinent part, that “[w]hen an act is required or allowed to be done at or within a specified time by these rules, by order of court, or by notice given thereunder,” the court may grant a request for enlargement of time to accomplish the required act if (1) a request for enlargement is made before the expiration of the specified time or (2) after expiration of the time if “the failure to act was the result of excusable neglect.” (Emphasis added.) By its own terms, therefore, rule 5.042(b) does not apply to acts required to be done within a specified time by statute, and there is no probate rule relating to a surviving spouse’s right to elect an undivided one-half interest in the decedent spouse’s homestead as a tenant in common. …

Because [surviving spouse] failed to satisfy the requirements set forth in section 732.401(2), the trial court erred as a matter of law in granting her an extension of time to file her notice of election under that section and in deeming her election timely.

You’ve been warned …

Walters v. Agency for Health Care Administration, — So.3d —-, 2019 WL 6691513 (Fla. 3d DCA December 4, 2019)

Phil Marden for The New York Times

The key to understanding this case is recognizing that one word — homestead — is used in three very distinct and different ways in Florida’s constitution:

  1. The homestead exemption from forced sale (creditor protection) is addressed in Article X, §4(a) and (b) of Florida’s constitution,
  2. The homestead restrictions on descent and devise are addressed in Article X, §4(c) of Florida’s constitution, and
  3. The homestead property tax exemption is addressed in Article VII, §6 of Florida’s constitution.

In other words, there’s no one definition of homestead that’s going to apply in all cases. The same co-op could qualify as “homestead” under one constitutional homestead clause, while at the same time failing to qualify as “homestead” under another constitutional homestead clause.

For example, under F.S. 196.041, a co-op qualifies as homestead property for purposes of Florida’s homestead tax exemption (Article VII, §6). Does this mean this same property also qualifies as “homestead” for other purposes? Not necessarily.

In In re Wartels’ Estate, 357 So. 2d 708 (Fla. 1978), the Florida Supreme Court held that a co-op can’t be homestead property under Article X, §4 of Florida’s constitution because it isn’t “an interest in realty.” Subsequent to Wartels the Florida legislature adopted a new Cooperative Act, Chapter 719, that placed co-ops on equal footing with all other “interests in realty” (as defined by Wartels), which have long qualified as homestead property under Article X, §4 of Florida’s constitution.

So did the post-Wartels legislative changes to Florida law involving co-ops settle the matter? Not for the 3d DCA.

Can a co-op be homestead property under Article X, §4 of Florida’s constitution? (Not in the 3d DCA: Part I)

In Phillips v. Hirshon, 958 So. 2d 425 (Fla. 3d DCA 2007) (a case I wrote about here), the 3d DCA questioned the continued vitality of the Florida Supreme Court’s decision in Wartels, but nevertheless concluded that their “proper institutional role obligate[d] [them] to adhere to Wartels” and that “[t]he better course [was] to affirm [a probate court’s order not extending homestead status to a co-op] and certify.” The 3d DCA also certified that its holding not extending homestead status to co-ops was in conflict with S. Walls, Inc. v. Stilwell Corp., 810 So.2d 566 (Fla. 5th DCA 2002).

After initially accepting jurisdiction, the Florida Supreme Court punted by discharging the case. So was that the end of the story? Nope.

Can a co-op be homestead property under Article X, §4 of Florida’s constitution? (Not in the 3d DCA: Part II)

The linked-to case above involved a co-op in North Miami Beach. The owner passed away survived by an adult daughter. Daughter petitioned to probate the co-op as protected homestead property. The Agency for Health Care Administration filed a statement of claim against the estate in the amount of $81,276.76, and objected to the claimed homestead creditor protection on the basis that a co-op isn’t a fee simple interest in land, and thus under Wartels doesn’t qualify as protected homestead. The probate judge agreed (as she must per the 3d DCA’s Hirshon opinion), and denied homestead protection for the co-op.

On appeal the 3d DCA was asked to reconsider its stance on co-ops as not being homestead under Article X, §4 of Florida’s constitution. Since the last time the 3d DCA had addressed the issue in Hirshon, another DCA had essentially ruled the other way in Geraci v. Sunstar EMS, 93 So. 3d 384 (Fla. 2d DCA 2012) (a case I wrote about here, here).

So did the 3d DCA change its mind this time around? Nope. But they again made clear they would have ruled the other way but for the Florida Supreme Court’s refusal to reconsider its decision in WartelsWhich they again invited the Florida Supreme Court to do. The 3d DCA also certified that its holding not extending homestead status to co-ops was in conflict with Geraci.

We continue to adhere to the Florida Supreme Court’s decision in Wartels, and to our own decision in Hirshon, and affirm the trial court’s denial of [the] petition to declare the cooperative stock to be homestead property. We recognize that, under circumstances similar to the instant case, the Second District, in Geraci v. Sunstar EMS, 93 So. 3d 384 (Fla. 2d DCA 2012), held that the homestead protection at issue was a forced sale rather than a devise and descent, and held that the decedent’s condominium was homestead property for purposes of the exemption from forced sale even though it did not constitute a fee simple interest in land. We therefore certify conflict with our sister court’s decision in Geraci. We also certify, as a question of great public importance, the same question certified by this court in Hirshon:

DOES THE FLORIDA SUPREME COURT’S DECISION IN IN RE ESTATE OF WARTELS V. WARTELS, 357 So.2d 708 (Fla. 1978), HAVE CONTINUING VITALITY IN LIGHT OF THE ADOPTION BY THE FLORIDA LEGISLATURE OF THE COOPERATIVE ACT, CHAPTER 76-222, LAWS OF FLORIDA?

Stay tuned for more …

Rizk v. Rizk, — So.3d —-, 2018 WL 6321228 (Fla. 3d DCA December 4, 2018)

In civil-law jurisdictions (such as Haiti) wills are prepared under the supervision of a notary acting in a quasi-judicial capacity that has no counterpart in common-law jurisdictions (such as Florida). We refer to these creatures of civil law as “notarial wills.”

Florida’s Probate Code refers to notarial wills, but doesn’t define them. For a good working definition you’ll want to turn to Comparative Succession Law, Testamentary Formalities (at pg. 449), which describes the four stages commonly involved in their creation as follows:

First, the testator makes an oral declaration of the will to the notary and two witnesses. Second, the notary (or an assistant) reduces the will to written form. Third, after being read aloud by the notary, the will is signed by testator, notary, and witnesses, with the notary adding information about the execution, including, usually, its date and place and the names of witnesses. Finally, the will is retained by the notary and, in some countries, registered in a central register.

Is a notarial will that’s valid in Haiti also valid in Florida? YES

As described by the 3d DCA in the linked-to case above, the Haitian will at issue in this case fits squarely within the classic definition of a notarial will.

[In 2013] the decedent prepared a will in accordance with Haitian law, which authorizes a testator to dictate the will to a Haitian notary who must reduce it to writing and read it back to the testator. The will is then executed by the testator, the notary and four witnesses. The notary then registers the will with the Haitian Tax Office and maintains the original in his or her office.

The testator at the center of this case is described by the 3d DCA as being a “native of Haiti.” I’m guessing that means he was domiciled in Haiti at the time of his death, although the 3d DCA doesn’t tell us explicitly. If the testator was domiciled in Haiti, one would assume any challenge to the validity of his will should have been prosecuted in Haiti. That didn’t happen, and based on that uncontested fact, the will was accepted as valid in Florida. So saith the 3d DCA:

In support of his motion for summary judgment, Appellee, inter alia, provided affidavits by the notary and a Haitian attorney attesting to the 2013 will’s validity under Haitian law. In the Haitian attorney’s affidavit, she states that, to her knowledge, no court action has been filed in Haiti to contest the 2013 will’s validity, and therefore, it remains valid under Haitian law. It appears from the record that not only did Appellant not challenge the 2013 will’s validity in Haiti, but that she already is receiving the benefits of the 2013 will as one of its beneficiaries.

Section 732.502(2) provides, in pertinent part: “Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida … is valid as a will in this state if valid under the laws of the state or country where the will was executed.” § 732.502(2), Fla. Stat. (2013). Appellee provided sufficient and undisputed evidence at summary judgment that the 2013 will is valid in Haiti.

Can you probate notarial wills in Florida? YES

A key characteristic of notarial wills is that the originally signed copy is supposed to stay with the notary who supervised its creation. Since Florida law usually requires the production of original wills for probate, the two systems of law are in conflict. The original notarial will can’t remain in the foreign notary’s custody (as required by local civil law), and also  delivered for probate (as required by Florida law). Fortunately, this conflict’s been resolved by statue.

As explained by the 3d DCA in Malleiro v. Mori (which I wrote about here), section 733.205 of Florida’s Probate Code provides a mechanism of probating notarial wills by allowing a copy to be admitted to probate in this state if the original is required to be retained in the foreign country and “if the original could have been admitted to probate in this state.” Problem solved.

Sampson Farm Limited Partnership v. Parmenter, 238 So.3d 387 (Fla. 3d DCA January 17, 2018)

Non-resident parties can’t be pulled into Florida litigation if they don’t have the kind of “minimum contacts” with this state necessary to satisfy our long-arm statute requirements under F.S. 48.193, and the constitutional due process requirements articulated by our supreme court in Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla. 1989). This is basic stuff.

So what’s the problem?

Unfortunately, the less than artfully drafted language of Probate Code section 731.301(2) muddies the water on what should be an obvious point. According to this statue, in “a probate proceeding, formal notice is sufficient to acquire jurisdiction over the person receiving formal notice to the extent of the person’s interest in the estate.”

Does this mean the rules for personal jurisdiction are different in “a probate proceeding”? NO! And it’s not just me that says so; according to this legislative White Paper, the Real Property, Probate and Trust Law Section of The Florida Bar agrees. Here’s an excerpt:

By statute, probate proceedings are in rem, meaning that the court has jurisdiction over the will, if any, the tangible and intangible assets of the decedent’s estate (wherever located), and real estate located in Florida, all without the necessity of any original process. F.S. 731.105; Also see In re: Estate of Williamson, 95 So.2d 244 (Fla. 1957). Service by formal notice is one method of complying with due process requirements necessary to invoke the court’s in rem jurisdiction over those receiving the notice to the extent of their interest in the estate. Even without addition of the phrase, “in a probate proceeding,” the statute is easily read to be addressing only a means of notice to persons subject to the court’s in rem jurisdiction that is calculated to effect due process over those receiving the notice.

Formal notice is not judicial process, and is not the equivalent of a summons. …

Personal jurisdiction is neither contemplated nor required in a majority of adversary proceedings in probate. Of those specific adversary proceedings listed in Probate Rule 5.025(a) that require service of formal notice, only surcharge of a personal representative or guardian requires in personam jurisdiction, and those fiduciaries have submitted to the court’s personal jurisdiction by instituting or participating in the court proceedings. See Payette v. Clark, 559 So.2d 630 (2d DCA 1990) (filing of a petition for administration subjects the personal representative to in personam jurisdiction “for all purposes related to the administration”).

Thus the formal notice procedure was never intended to be a method of obtaining personal jurisdiction over persons having an interest in the probate estate. In Re Estate of Black, 528 So.2d 1316 (Fla. 2d DCA 1988); In Re Estate of Vernon, 608 So.2d 510 (Fla. 4th DCA 1992). Formal notice is a method of service of notice to a person subject to the court’s in rem jurisdiction. It is not a summons or judicial process that confers in personam jurisdiction over the recipient.

To avoid future confusion a statutory clarification was introduced earlier this year in SB 1154 as part of a wide-ranging bundle of Probate Code revisions. Under this bill, the following sentence would have been added to the end of F.S. 731.301(2):

Formal notice is not sufficient to invoke the court’s personal jurisdiction over the person receiving formal notice.

SB 1154 died in committee. Until we have a legislative fix we’ll need to rely on common sense and appellate court guidance to get us to the right answer. Fortunately, that’s exactly what the 3d DCA serves up in this case.

Is probate different? NO

In the linked-to case above a Florida personal representative filed an adversary probate petition requesting a declaratory ruling as to the estate’s ownership interest in a Massachusetts limited partnership (LP). The LP owns and operates a working farm in Massachusetts. The LP has no contacts with Florida.

The LP filed a motion to dismiss for lack of personal jurisdiction, challenging the lack of factual allegations providing a basis for personal jurisdiction under either F.S. 48.193 or our constitutional due process requirements. The personal representative persuaded the probate judge none of that mattered “because of the special nature of probate.” (What?!)

Wrong answer says the 3d DCA. Here’s why:

[In Wolf Sanitary Wiping Cloth, Inc. v. Wolf, 526 So.2d 702 (Fla. 3d DCA 1988), receded from on other grounds by C.A.T. LLC. v. Island Developers, Ltd., 827 So.2d 373, 374 (Fla. 3d DCA 2002) (en banc)], this Court found that section 731.301(1) was not “a shorthand method of subjecting all potential litigants to the jurisdiction of the probate court.” Id. While recognizing that personal representatives have a duty to marshal estate assets with dispatch, this Court concluded that duty “does not empower a personal representative to enforce contract rights against a foreign corporation where jurisdiction has not been obtained.” Id. at 706.

Moreover, it is well established—both generally, and specifically with regard to adversary actions arising out of probate—that a pleading must make the requisite allegations of personal jurisdiction. … Thus, even if [the LP] fell within the scope of section 731.301(1)’s notice provision, [the personal representative] failed to provide any evidence of [the LP’s] minimal contacts with Florida sufficient to meet the constitutional due process requirements necessary to exercise personal jurisdiction over it.

And because the facts matter, the 3d DCA went out of its way to explain that even if the personal representative had followed the established rules for pleading personal jurisdiction, the result would have been the same based on the LP’s lack of minimum contacts with Florida.

 Because [the personal representative] failed to establish a basis for the exercise of long-arm jurisdiction under section 48.193, we need not address the issue of minimum contacts and constitutional due process. It is clear, however, that with respect to this second prong, the record contains no evidence that [the LP] has engaged in any business in Florida, bought or sold property in Florida, or engaged in any other contact with Florida such that [the LP] could reasonably expect to be haled into court here. Indeed, the record shows that the petition was served on [the LP’s] registered agent in Massachusetts. Based on the record here, exercise of personal jurisdiction would “offend ‘traditional notions of fair play and substantial justice.'” Int’l Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)).

In 2017, the Florida Senate voted unanimously to authorize electronic wills (see here). Was that the end of the story? Nope. Former Gov. Rick Scott vetoed the bill, saying it failed to strike the proper balance between convenience and safety (see here).

So are electronic wills dead in Florida? Nope. With only days left in the 2019 legislative session, the Florida Senate again voted unanimously to authorize electronic wills (HB 409). And this time the bill got signed into law.

Is this a big change in Florida law? YES

Florida’s traditional approach to wills is to require “strict compliance” with all of the execution formalities (which date back almost two centuries to the UK Wills Act of 1837). The slightest slip up, no matter how inconsequential, can get your will tossed out of court (see here, here, here).

Electronic wills are a big change because it’s the first time Florida law’s retreated even slightly from strict compliance with will-execution rules developed in 19th century England.

But what about vulnerable adults, such as the elderly?

Survey data tells us most people believe having a will is important, but less than half have one. Electronic wills are intended to address this problem by making wills affordable and easily accessible to the average consumer using on-line tools that are ubiquitous in 21st century Florida. But did we go too far? Will this become yet another on-line trap for vulnerable adults, such as the elderly?

Not according to Florida’s elder-law attorneys. As reported here, Travis Finchum, representing the Bar’s Elder Law Section, is a supporter.

“We do believe it does address our concerns about vulnerable adults and individual who are susceptible to coercion and undue influence. … The stakeholders have listened to the Elder Law Section, taken our recommendations, and incorporated them into this version of the bill. So we are here to support the bill.”

And as reported here, shortly after the bill was rolled out, the Academy of Elder Law Attorneys’ Shannon Miller assured critics that vulnerable Floridians would be protected.

“We see this as progress,” Miller said. “The important parts of the bill from the elder law perspective are that it does not apply to vulnerable adults. They’re excluded. So the idea that someone would be able to go into a nursing home and take advantage of these vulnerable adults, that is actually not someone who is allowed to engage in remote witnessing.”

A summary of the key protective features built into Florida’s new electronic-wills regime is found in the Legislative Staff Analysis. Here’s an excerpt:

Unless the testator is a vulnerable adult [as such term is defined in F.S. 415.102], the witnessing of a will execution can be done remotely if:

  • The individuals are supervised by a notary public;
  • The individuals are authenticated and signing as part of an online notarization session in accordance with s. 117.265, F.S.;
  • The witness hears the signer make a statement acknowledging that the signer has signed the electronic record; and
  • In the case of an electronic will, the testator provides, to the satisfaction of the online notary public, verbal answers to the following questions:
    • Are you 18 years of age or older?o
    • Are you of sound mind?
    • Are you signing this will voluntarily?
    • Are you under the influence of any drugs or alcohol that impairs your ability to make decisions?
    • Has anyone forced or influenced you to include anything in this will which you do not wish to include?
    • Did anyone assist you in accessing this video conference? If so, who?o Where are you? Name everyone you know in the room with you.

Will there be a rush to electronic wills? NO

The new legislation goes into effect on January 1, 2020. But I don’t expect electronic wills are going to become the norm anytime soon. Why? Because the type of electronic-wills legislation we’ve adopted in Florida requires a level of capital investment and specialized data-storage infrastructure few law firms are able to muster. If electronic wills gain widespread acceptance, it will likely be because of law companies like Willing.com, UnitedLex, Axiom, and Elevate.

Our legislation mandates that all electronic wills must be stored by a “qualified custodian,” subject to strict rules and regulations (as well as liability if anything goes wrong). Here’s how this aspect of the new law is described in the Legislative Staff Analysis:

A qualified custodian of an electronic will is a person who meets all of the following requirements:

  • Is domiciled in and a resident of Florida or is incorporated or organized in Florida;
  • Consistently employs a system for maintaining custody of electronic records and stores electronic records containing electronic wills under the system; and
  • Furnishes for any court hearing involving an electronic will that is currently or was previously stored by the qualified custodian any information requested by the court pertaining to the qualified custodian’s policies and procedures.

A qualified custodian must maintain an audio-video recording of an electronic will online notarization. A qualified custodian is liable for the negligent loss or destruction of an electronic record and may not limit liability for doing so. The bill also prohibits a qualified custodian from suspending or terminating a testator’s access to electronic records. The bill requires a qualified custodian to keep a testator’s information confidential.

And this isn’t the only obstacle to wide-spread acceptance of electronic wills. In What Is an “Electronic Will”?, published in the April 2018 edition of the Harvard Law Review, the authors identified “six potential barriers to increased uptake of electronic wills.” Here’s an excerpt:

… Some scholars have identified potential reasons to doubt an increase in the creation of electronic wills. In 2007, [in an article entitled Digital Wills: Has the Time Come for Wills to Join the Digital Revolution?,] Professors Gerry Beyer and Claire Hargrove identified six potential barriers to increased uptake of electronic wills, including: (1) technical barriers such as the lack of software that would provide adequate authentication, (2) social barriers such as attorneys’ reluctance to help create electronic wills, (3) economic barriers such as the expense of implementing new technology, (4) motivational barriers such as a lack of recognition of the potential benefits of electronic wills, (5) obsolescence barriers stemming from changes in technology, and (6) a general resistance to change. Even as they identified these important roadblocks, however, they recognized that change was on the horizon, noting that “we must be ready to make the transition when the time is right.”

As trusts and estates attorneys, we spend our professional lives planning for and adjudicating property issues. In fact, our probate code explicitly tells us at F.S. 731.105 that probate proceedings “are in rem proceedings.”

But before any of this property finds its way into one of our probate courts, someone has to die. And each one of those deaths is its own unique story. How should we think about those stories? Or discuss them with our clients? Or, as is sometimes necessary, address them in court?

It’s not something we’re taught in law school.

Which brings me to a beautifully written and thoughtfully constructed guide to writing—and reading—about death that trusts and estates attorneys should find especially engaging. It’s a collection of essays by Miami’s own Edwidge Danticat, entitled The Art of Death: Writing the Final Story. Part philosophy, part literary criticism, part prayer, Danticat explores death both in real life and in art.

Divided into short chapters with titles such as “Ars Moriendi,” “Wanting to Die,” “Close Calls,” and “Feetfirst,” Danticat’s The Art of Death is a quick read, but it’s packed with clear-eyed wisdom and grace that sticks with you long after you’ve put it down.

As an added bonus Danticat peppers her essays with a treasure trove of “on topic” quotes by dozens of writers, including Tolstoy, Camus, Chekhov, Gabriel García Márquez, Toni Morrison, Audre Lorde and Ta-Nehisi Coates. One of my favorites is this quote from The English Patient by Michael Ondaatje, which Danticat used as an epigraph to her book.

We die containing a richness of lovers and tribes, tastes we have swallowed, bodies we have plunged into and swum up as if rivers of wisdom, characters we have climbed into as if trees, fears we have hidden in as if caves. I wish for all this to be marked on my body when I am dead. I believe in such cartography—to be marked by nature, not just to label ourselves on a map like the names of rich men and women on buildings. We are communal histories, communal books.

Good stuff; highly recommended.