Daily Development for
Monday, April 5, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

HOMESTEAD; HEIRS: Granddaughter of testatrix dying without spouse was "heir" within homestead exemption statute and took property free of claims of creditors, even though she was devisee under will rather than acquiring property through intestacy.

Synder v. Davis, 699 So.2d 999 (Fla. 1997).

The Florida Constitution provides:

“There shall be exempt from forced sale under process of any court, and no judgment, decree, or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person: . . . (1) a homestead.... (b) These exemptions shall inure to the surviving spouse or heirs of the owner.”

The effect of these provisions, apparently, is to save the homestead exempt from the claims of the decedent’s creditors even if it is not and does not become the homestead of the heir.

The homeowner in this case devised her home to her grandaughter. At her death her son, the grandaughter’s father, was still living, and under Florida’s intestate succession statute would have been the only person entitled to take her estate had she died intestate. Her executor attempted to have the homestead property sold in order to satisfy debts and specific bequests.

There had been a split in the lower court decisions on the meaning of “heir” within the Constitutional provision set forth above, and the Flordia Supreme Court granted an appeal to resolve the issue.

Held: “Heir,” within the meaning of the Constitutional provision, includes “any of the class of potential heirs under the intestacy statute” to whom a testator devises the homestead. (Note that the interest of a devisee or heir would be available only when there is no surviving spouse or minor children.)

The court stated that the Florida tradition has been to construe liberally the homestead exemption to carry out its purposes. Those purposes are “to promote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune and the demands of creditors who have given credit under such law.” It pointed out that this purpose is not a question of equity, as the value of the homestead or the wealth of the heir or devisee is not an issue.

They acknowledged that the usual meaning of the term “heir” is the party entitled to inherit under the laws of intestacy, and that this would be the testator’s son in the instant case, and no one else. But to give such a reading to the Constitution here would be to present a hometead owner with a Hobson’s Choice: Either permit the property to pass by intestacy or take a chance as to whether the person to whom you devise the homestead will be your heir, knowing that if you guess incorrectly, the homestead could be lost to creditors. There were two dissenters who wrote vigorous rebuttals, noting that the court’s alteration of the meaning of the term heirs was a repudiation of the separation of powers doctrine, as the people of Florida, in approving specific Constitutional language, must have intended to term “heir” to have its normal and universal meaning. To interpret the term differently, the dissenters argued, was to go beyond the province of the court. Further, to do so in the face of consistent judicial interpretations of the word throughout the court’s history, is also to violate the principle of stare decisis.

Comment 1: The editor sides with the dissent. Notwithstanding the difficulty of the language for homesteaders planning a testamentary scheme, isn’t the solution to the problem the job of those entrusted with the process of Constitutinal revision in Florida? To reinterpret words of established meaning in order to carry out results consistent with the judge’s view of policy is to create a a government of individual judicial fiat, and not a government of laws. The principle of separation of judges from independent policy making in areas governed by clear statutory or Constitutional language is a vital principle of our democracy, and not one to be trifled in any circumstance, and certainly not with regard to an issue so minor and insignificant as the one in this case.

The testator here apparently did not die with sufficient assets to pay her debts fund her own bequests under her will. Is it likely that she really intended to make use of the Florida Constitution to cut down on the interests of others whom she identified specifically as beneficiaries in the will? If that was her intent - how much policy significance ought we place in carrying it out? There was no great policy issue at stake here, nor is there generally in the question of family wealth transmission. But the question of whether courts are free to tamper with the meaning of technical words that have universally accepted language is a profound policy issue that this case brings into sharp focus.

Comment 2: Note that the court’s interpretation stops short of holding that any devisee can be viewed as an “heir” within the meaning of the Constitution. The devisee must qualify as someone identifiable as a possible heir at law. Again, the court is not really trying to carry out the intentions of testators or follow the normal meaning of the word - it is identifying a whole new meaning for the concept out of whole cloth. A truly extraordinary result - and one that one hopes will not set a trend for judicial interpretation in other established areas.

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