by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolpp@smtpgate.umkc.edu

DECEDENT'S ESTATES; HOMESTEAD: Florida statute vesting remainder interest in homestead property in lineal descendants rather than to children and step-children equally as provided in will is not unconstitutional or an unlawful restraint on alienation. King v. Ellison, 648 So.2d 666 (Fla. 1994).

Husband and first wife executed mutual wills by which they agreed that their property would pass to the survivor and, upon the death of the survivor, any property owned by the survivor would pass to the children and stepchildren of the survivor, per capita (presumably each had stepchildren who were children of the other spouse.) Husband survived wife and thus succeeded to her property. He then remarried and, with the new wife, established a homestead on certain of the property. Husband died shortly thereafter. Under a Florida statute, homestead property may be willed completely to a surviving spouse, but if there is no such will, the property passes to the surviving spouse for life, with remainder to the lineal descendants of the decedent.

The consequence of the application of the statute was to disinherit the children of the first wife, who were stepchildren of the decedent. Instead of their sharing equally with the lineal descendants, as provided in the will, the lineal descendants got all the property, as provided by the statute.

The Florida Supreme Court had little trouble concluding that the statute comported with the Florida Constitution (its analysis is undoubtedly correct here). The court did not discuss at all the question of restraint on alienation, and the lower appeals court did not either. Apparently neither court was prepared to conclude that the legislative intent to benefit lineal descendants interfered with alienation. The appeals court further pointed out that if the parties had thought about the issue, and wished for the will to be valid, the second wife could have waived her homestead right (the court seems to assume, without saying why, that this would have also changed the inheritance rights of the lineal descendants.)

Comment: This case clearly is a construction of the laws on one state. But it is a good object lesson. People make wills with one set of facts in mind. When the facts change, or might change, they ought to think carefully through all the consequences. Another point to keep in mind is that old people often move to Florida before they die, and their Florida property will be tied up by Florida's laws, regardless of where they wrote the will and what their intentions were at that time.

The Florida Bar recently got into a sticky argument over the ethics of a lawyer in another state drafting a deed of Florida property into a living trust. The Florida Bar argued that this constituted the unauthorized practice of law in Florida, even though the property owner and the lawyer were both located in another state at the time. The Florida Bar appears to have decided the point is not one it wishes to pursue. But the point is well made. Florida deed requirements, in fact, are somewhat more complex. Perhaps Florida lawyers would be more likely to be able to satisfy them.

In this case, the mutual wills were drafted at a time when the parties had already acquired what appears to have been their "retirement home" property in Florida. In fact, for aught that appears in the opinions, they may already have been Florida residents. But if they had not been Florida residents at that time, but were executing documents that were clearly intended to deal with transfer upon death of their Florida property, should a Florida lawyer have been involved? If not, should the lawyer drafting the documents be held to the standard of a Florida lawyer? Would it be malpractice to draft mutual deeds of this type without anticipating that the surviving spouse might remarry and thus invoke the statutory homestead restriction on devise? What do you think the disappointed children/stepchildren thought, when their counterpart children of the surviving husband refused to let them in on a share of their mother's property?

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