Any Devise of Homestead Property That Does Not Grant a Fee Simple Interest to a Surviving Spouse … Fails

Nat Stirberg died leaving his surviving spouse Valerie Stirberg and children to litigate over who owns his homestead apartment. The case was decided on March 15, 2023, when the Florida Fourth District Court of Appeal in Stirberg v. Fein as Co-Trustee of Nat Stirberg Revocable Residence Trust, 48 Fla. L. Weekly D577, decided that the children have the right to prove their remainder interest in the homestead.

Before his death, Nat created a residence trust and conveyed his Florida apartment to it. The trust provided that, upon Nat’s death, the apartment transferred to Valerie for her life with a power of appointment in Valerie to exercise at her death to leave the remainder to her granddaughter. 

Any Florida probate attorney knows this cannot be done because Florida law restricts who may receive homestead property at death when there is a surviving spouse. The Florida Supreme Court has said:

“[W]here a testator dies leaving a surviving spouse and adult children, the property may not be devised by leaving less than a fee simple interest to the surviving spouse …. This exception is exclusive and prohibits the testator from devising less than a fee simple interest to his surviving spouse under the circumstances presented herein.”

In re Finch’s Estate, 383 So. 2d 755, 757 (Fla. 4th DCA 1980)

The appellate court in the Stirberg case reconfirmed this ruling by saying:

“Thus, any devise of homestead property that does not grant a fee simple interest to a surviving spouse fails, regardless of intent.”

Nat’s children claimed the trust provision violated the Florida Constitution’s homestead provisions, resulting in a void gift, so they filed a petition to determine homestead status of real property. 

In its opinion, the appellate court noted that homestead passes immediately on the date of death by saying:

“Homestead property rights vest immediately upon the death of a testator or settlor. See Aronson v. Aronson, 81 So. 3d 515, 519 (Fla. 3d DCA 2012) (“At the moment of Hillard’s death, his homestead property passed outside of probate.” (citations omitted)); § 736.1109(1), Fla. Stat. (2022) (“If a devise of homestead under a trust violates the limitations on the devise of homestead in s. 4(c), Art. X of the State Constitution, title shall pass as provided in s. 732.401 at the moment of death.”).”

What’s interesting about this case is that the trustee of the residence trust attempted to fix the void trust provision by filing a separate trust reformation action, which almost worked: the trial court ordered reformation of the trust. But, the children appealed, and the appellate court sent the case back to the trial court, saying: 

“Not even a retroactive action can validly cure a devise violating the homestead laws. See Gotshall v. Taylor, 196 So. 2d 479, 481 (Fla. 4th DCA 1967) (“If the requirements of the Constitution and the statutes are not complied with in alienating homestead real estate, the attempt is a nullity … and is void ab initio, and subsequent events will not breathe life into it[.]”). A trust reformation is such a retroactive action and therefore cannot cure a devise violating the homestead laws.

“The Residence Trust conveyed to Valerie a life estate in the apartment with a power to appoint the remainder. Appellants have alleged that this conveyance violates constitutional and statutory homestead law. If they are correct, the Apartment would have passed as provided by section 732.401(1), Florida Statutes (2022)—a life estate to Valerie and a remainder to Appellants as the Decedent’s descendants.”

The case isn’t over yet. Now it’s up to the trial court to hear the petition to determine homestead status of real property filed by the children. Any predictions on who wins?

-James W. Martin, St. Petersburg, Florida, Probate Estate Attorney, April 30, 2023