Friscia v. Friscia

Friscia v. Friscia, 161 So.3d 513 (Fla. 2d DCA 2014), 2014 WL 4212689

Again we have a probate case involving the intersection between probate and family law, this time with the added twist of Florida homestead law.  This case involved a determination of whether a decedent's interest in a home was homestead based upon the provisions of the decedent's marital settlement agreement with his first wife.  

The decedent's marital settlement agreement gave his first wife exclusive use and possession of their marital home until their youngest child graduated from high school.  At that time, the decedent and his first wife were required to sell the marital home and split the proceeds.  The decedent died before his youngest son graduated from high school, and thus the probate court held that the decedent owned the home as a tenant in common with his first wife and his interest retained its homestead status, relying on the Third Districts decision in Beltran v. Kalb, 63 So.3d 783 (Fla. 3d DCA 2011)

The personal representative of the decedent's estate first argued that the probate court's reliance on Beltran was incorrect, because Beltran did not involve issues of waiver in the marital settlement agreement.  He argued that the decedent waived homestead in the marital settlement agreement, and based his position on two separate provisions of the agreement: the mutual release provisions and the provisions requiring the eventual sale of the homestead.

The Court rejected the personal representative's argument that this case was distinguishable from Beltran.  In Beltran, the husband and wife owned the marital home as tenants in common at the time of the wife's death, making it necessary to determine the homestead status of each owner.  The Court held that the award of exclusive use and possession of the homestead to the wife did not extinguish the husband's right to homestead protection, since his child, who he still supported financially, still lived on the property.  Thus, because each of the tenants in common retained their homestead interest in the marital home, the homestead exemption precluded the forced sale of the property to satisfy a creditor.  Like in Beltran, here, the husband and wife owned the marital home as tenants in common at the time of the decedent's death.  And also similarly, the award of exclusive use and possession to the wife did not extinguish the decedent's right to homestead protection, since his child, who he still supported financially, also still lived on the property.  Thus, the probate court's reliance on Beltran was proper.

The Court also rejected the personal representative's argument that the provisions of the marital settlement agreement waived homestead protection.  Even though the mutual release provisions in the agreement were broad, and contained language waiving "all rights," the broad waiver only waived homestead rights in the property of the other.  Since the rights at issue here were the decedent's own homestead rights in the property, and not the property of the former wife, the mutual release provisions did not constitute a waiver of the decedent's homestead protection.  The Court similarly found that the decedent's agreement to sell the marital home in the agreement was not inconsistent with the homestead right protecting his interest from forced sale.   As a result, the Court held that neither provision in the marital settlement agreement constituted a waiver of the decedent's homestead protections.

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