THE THIRD DISTRICT HOLDS THAT ADULT SON OF DECEDENT DID NOT HAVE STANDING TO PETITION FOR DETERMINATION OF HOMESTEAD ON GROUNDS HE WAS POTENTIAL HEIR.

Rudnikas v. Gonzalez, -- So.3d – (Fla. 3^rd DCA 2024), 2024 WL 1289908

In this probate litigation dispute, the primary issue was whether an adult son of the decedent had standing to petition for a determination of homestead real property on the grounds he was a potential heir. The lower court ruled the son did not have standing and the Third District Court of Appeal affirmed.

The relevant facts of the case are:

• The decedent did not have a spouse.

• The decedent did not have any minor (under the age of 18) children.

• The decedent died with a valid Last Will & Testament leaving all real and personal property to his mother, if she survived him, and if not then to his daughter who would receive the full estate except for $1 which would go to the son.

• Decedent’s mother survived him.

• The son did not challenge the Last Will & Testament and signed various probate consents and waivers.

• The Last Will & Testament was admitted to probate by the lower court.

Article X, §4 of the Florida Constitution protects homestead in three ways: 1) exemption from taxes, 2) protection against forced sale by creditors and 3) restrictions on devise of homestead property at death. The third protection is at issue in this case.

In Florida, the homestead provision of the Constitution seeks to protect and preserve the interest of the family in the family home.” Snyder v. Davis, 699 So.2d 999, 1002 (Fla. 1997). The homestead protections promote this interest “by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune.” Pub. Health Tr. of Dade Cnty. v. Lopez, 531 So. 2d 946, 948 (Fla. 1988).

The Third District observed that

A devise of homestead property is constitutionally restricted when “the owner is survived by spouse or minor child.” Art. X, § 4(c); see also City Nat'l Bank of Fla. v. Tescher, 578 So. 2d 701, 703 (Fla. 1991) (“Historically, the purpose of the homestead provision was to protect the family. The constitutional provision prohibiting devise of the homestead property if the owner is survived by a spouse or minor child reflects this same concern for protection of the family.”) (citation omitted). If an owner contravenes this prohibition, the property descends by way of intestate succession, as provided in section 732.401(1), Florida Statutes (2021). See In re Finch's Est., 401 So. 2d 1308, 1309 (Fla. 1981). Absent a surviving spouse or minor child, however, the homestead may pass by devise, rather than operation of law. See Cutler v. Cutler, 994 So. 2d 341, 346 (Fla. 3d DCA 2008).

In this case, the decedent was not survived by a spouse or any minor children so he was free to devise his homestead to anyone. He decided to leave it to his mother in a valid Last Will & Testament that was not challenged by the son and that was admitted to probate by the lower court. Because the devise was valid under Florida law, the son had no standing to petition the court to do anything regarding the homestead property because he had no interest in it.

Category: homestead property, homestead law, probate, probate litigation