In our last newsletter, we discussed the latest statutory assault on the homestead citadel Assault on the Homestead Citadel. In this newsletter, we will discuss a recent case law assault on Florida’s broad homestead protections.
Effective July 1, 2017, the Florida Legislature has amended Florida Statute 732.2035 dealing with property entering into the “elective estate.” The Legislature has added into the list of assets that make up the elective estate for the first time, the decedent’s interest in property which constitutes the protected homestead of the decedent. The law establishing an elective estate or “elective share,” as it is known, is designed to protect surviving spouses from being completely disinherited. The law provides that a surviving spouse must receive at least 30% of the decedent’s “elective estate,” no matter what the decedent’s Will, Trust, or other type of estate plan might say. This statute then goes on to list all of the various types of properties and assets that are included in the calculation of the “elective estate.” Previously, the homestead was not included.
This is the second installment in our series discussing the impact of marriage on the legal rights of spouses to share in each other’s assets. We now focus on what happens to a married person’s “homestead” property (primary residence) when he or she passes away.
As our faithful readers (and workshop attendees) may recall, Florida homestead law is meant to protect a person’s primary residence from creditors, but its quirks can cause major problems, particularly for a blended family. A recent court decision illustrates that point in a situation where another potent ingredient was thrown into the mix: a marital settlement agreement. A “marital settlement agreement” is a legally-binding, final agreement between the husband and wife in a divorce case.
Wording in a will or trust which allows a named person to decide where your property and money should go after your death (instead of you making that decision ahead of time) is called “precatory” language. An example is the recent Florida case of Cody v. Cody, where Earler Martin’s will left his home, and the rest of his estate, to one of his three stepsons, “to divide between [himself and his brothers], as he sees fit and proper.” Earler’s wish was probably that the inheriting stepson, Buford, divide up the home and other property equally between himself and his brothers. However, the words he chose to express that desire defeated that intent.
In our September 9, 2010 newsletter, we warned of a change in Florida’s homestead law effective October 1, 2010. We updated our clients, as well as our readers, and many of them heeded that warning and made changes to their estate plans. Clients of other attorneys may not have gotten the message.