Article X Section 4 of the Florida Constitution and Florida Statutes 732.401 and 732.4015 provide that homestead property is not subject to devise if the owner of their primary residence or homestead is survived by a spouse or minor child except that if survived by a spouse and no minor child the homestead may be devise to spouse fee simple interest. If not devised as permitted by Florida law the property shall descend as other intestate property which would be a life estate to the spouse and a vested remainder to the children if both existed or outright to the spouse if no children existed.
A third DCA case was decided last month in Habeeb v Linder regarding homested property in Key Biscayne Florida. Richard Habeeb was PR of the estate of Mitchell Habeeb who briefly survived his spouse Virginia by a couple months who had owned homestead property but who had a will that said he got a life estate and then sought to pass the property to her sister Betty who would have the remainder. Neither Virginia or Mitchell had children.
The year after Mitchell died and while Richard was seeking to probate his estate Betty Virginia's sister who the will provided was to receive the remainder interest of the Key Biscayne Florida real estate died and was survived by her daughter Catherine Risk Linder who was her personal representative.
Richard as the personal representative for Mitchell appealed an order that found a warranty deed executed by Mitchell and his spouse Virginia conveying a warranty deed conveying all their interests to Virginia waived all spousal homestead rights despite it not saying it was a waiver or meeting the requirements of a post nuptial agreement. He had argued that it was homestead property and therefore the transfer to Betty was invalid pursuant to the Florida Constitution and statutes. He lost though as the court affirmed for reasons mentioned below.
Mitchell and Virginia Habeeb were married for approximately fifty years until Virginia died in 2008. In 1973, the couple took title to a Key Biscayne condominium unit as tenants by the entireties. The condominium unit was their residence and Florida homestead. In 1979, Mitchell and Virginia prepared a warranty deed giving to Virginia a fee simple interest in the homestead property. The deed did not include a provision containing the terms “waiver” and “homestead rights,” but it did contain the traditional, sweeping terms of a warranty deed.
In 2006, Virginia executed a will devising a life estate in the condominium unit to Mitchell, with the remainder to her sister Betty. Under the will, Mitchell also received the residuary estate. The couple continued to live in the Key Biscayne property until Virginia died in November 2008. Virginia was survived by both Mitchell and Betty. Mitchell died in January 2009, survived by six nephews, including Richard Habeeb. Betty died in July 2010, survived by her daughter Catherine Risk Linder.
In 1979, Virginia and Mitchell had owned the subject condominium as tenants by the entireties. In that year, Mitchell and Virginia signed a warranty deed granting to Virginia a fee simple interest in the condominium. Based on this, Virginia’s estate claimed that Mitchell had waived his homestead rights in the condominium, and thus no homestead restrictions on the devise applied at Virginia’s death. Both the trial court and the appellate court agreed with Virginia’s estate.
Virginia’s estate had to show a valid waiver, per the requirements of the Florida post nuptial agreeement statute section 732.702. The 1979 statute was essentially the same as the current one.
Subsection one of the statute requires a written contract or agreement. Virginia’s estate argued that the warranty deed constituted the waiver of homestead rights. It was a written and notarized document but did not mention either homestead or any waiver. While a general waiver of all rights is permissible for homestead and any rights with no mention of either homestead or any waiver Mitchell's estate argued that point.
The appellate court noted that the Florida Warranty Deed form provided that the grantor “grants, bargains, sells, aliens, remises, releases, conveys, and confirms” to the grantee “all that certain land” as well as “all the tenements, hereditaments and appurtenances thereto” to the grantee. The court indicated that the term “heriditaments” includes “anything capable of being inherited.” Based on this language, the court found a valid “waiver” by Mitchell of his homestead rights.
The deed devised Mitchell's ownership interest in the property but did not directly devise the separate homestead provisions applicable to his wife’s subsequent ownership or that he even knew of them and intended to waive them.
2 Subsection two of the statute mentions that if done subsequent to the marriage Fair Disclosure is Required. In this case it was clearly after the marriage with the couple married in the 50's. There was no written disclosure of assets or written acknowledgment of knowledge of each other’s assets to meet this fair disclosure requirement in 1979.
The appellate court was not bothered by this lack of disclosure. Instead, it relied on (1) the parties having been married around three decades years at the time of the 1979 transfer, (2) the deed having been prepared by an attorney and signed before two witnesses and a notary public, (3) the parties preparing subsequent wills based on the real estate transfer and without regard to homestead restrictions, and (4) Mitchell not having made objections during the time after he survived his wife, Virginia.
It appears the court looked to length of marriage, everything being harmonious, and subsequent documents as well as the nuance of the meaning of the standard word in the warranty deed and inferred intent that they wanted the property to be transferred the way Virginia's will provided and gave them a pass on the requirements assuming they intended that the deed served as a waiver for homestead as well as his interest in the property.
Judicial View discussed this Florida Homestead case which was decided in February 2011.