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Who Gets The House?

By Juan C. Antúnez on September 25, 2004
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In light of skyrocketing real estate values in Florida, for most Floridians their single most valuable asset is their home. If a homeowner is survived by a spouse or minor children, his or her residence is protected homestead property under Florida’s Constitution (Art. X, § 4(c)) and Probate Code (F.S. §731.201(29)), and thus not subject to devise pursuant to F.S. § 732.4015. However, if the homeowner’s residence is NOT protected homestead property, one might be forgiven for assuming that the residence was “freely” devisable.

Not so fast said the Florida Supreme Court in McKean v. Warburton, 2005 WL 3601898 (Fla. September 8, 2005). If a homeowner that expects NOT to be survived by a spouse or minor children wants to make sure that his or her single most valuable asset at death can be used to satisfy pre-residuary bequests, the Florida Supreme Court’s holding in this case requires that the homeowner specifically provide in his or her Will that the homestead property be sold and added to the general probate estate. Specifically, the Florida Supreme Court provided the following drafting advice for all Florida estate planners:

We therefore . . . hold that where a decedent is not survived by a spouse or minor children, the decedent’s homestead property passes to the residuary devisees, not the general devisees, unless there is a specific testamentary disposition ordering the property to be sold and the proceeds made a part of the general estate.

Photo of Juan C. Antúnez Juan C. Antúnez

Mr. Antúnez is a Florida native. Prior to law school Mr. Antúnez volunteered for service with the United States Marine Corps Reserve, 4th ANGLICO, West Palm Beach, Florida (1987-1993), including combat operations during the First Gulf War (1990-91). Mr. Antúnez has practiced law…

Mr. Antúnez is a Florida native. Prior to law school Mr. Antúnez volunteered for service with the United States Marine Corps Reserve, 4th ANGLICO, West Palm Beach, Florida (1987-1993), including combat operations during the First Gulf War (1990-91). Mr. Antúnez has practiced law in Florida since 1996. Trusts and estates litigation, probate administration and estate planning is all he does as a lawyer. Mr. Antúnez is the author and publisher of the Florida Probate & Trust Litigation Blog, co-author of the Florida probate chapter of International Succession, published by Oxford University Press, and sole author of the Florida chapter of ADR and Trusts: an international guide to arbitration and mediation of trust disputes, published by Spiramus Press. Mr. Antúnez has previously served as an adjunct law professor for the LL.M. in Estate Planning program at the University of Miami School of Law, and frequently lectures at continuing legal education seminars for professional groups on areas related to trusts and estates. Read More…


Education

LL.M. in Estate Planning, University of Miami School of Law, Miami, Florida, 2003

J.D., New York University School of Law, New York, New York, 1996

B.A., Finance, Florida International University, College of Business, Miami, Florida, 1992

Jurisdictions Admitted to Practice

Florida, 1996

Admissions

All Florida state courts

U.S. Court of Appeals for the Eleventh Circuit

U.S. District Court, Middle District of Florida

U.S. District Court, Northern District of Florida

U.S. District Court, Southern District of Florida

Professional & Bar Association Memberships

Florida Bar

Member: Real Property, Probate and Trust Law Section

Member: Elder Law Section

Member: International Law Section

Military Service

4th ANGLICO, United States Marine Corps Reserve, West Palm Beach, Florida, 1987-1993

Honors: Combat Action Ribbon, Kuwaiti Liberation Medal, National Defense Service Medal, Southwest Asia Service Medal, Army Commendation Medal, Meritorious Unit Citation

Read more about Juan C. AntúnezEmailJuan C.'s Linkedin Profile
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  • Posted in:
    Trusts, Estates and Elder
  • Blog:
    Florida Probate & Trust Litigation Blog
  • Organization:
    Stokes McMillan Antúnez Martinez-Lejarza P.A.
  • Article: View Original Source

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