Homestead
Property Not Specifically Devised in Will Passes To Residuary Devisees
Last Updated: 10/16/2005
The Florida Supreme Court rules that if a decedent does not have a surviving spouse or child, homestead property that is not specifically devised passes to the residuary devisees, not the general estate. McKean v. Warburton (Fl., No. SC04-1243, September 8, 2005).
Henry Pratt McKean II had a will leaving a specific cash bequest of $150,000 to Peter Warburton and the remainder to his brothers. When he died, he had only a homestead property valued at $140,000 and nominal assets. Without the homestead property, the estate's assets did not satisfy creditor's claims and the specific bequest.
Mr. Warburton argued that the homestead property should be used to fund his specific bequest. Mr. McKean's brothers argued that it should pass to them through the residuary clause.
The court of appeals ruled that Mr. Warburton was entitled to the property (Warburton v. McKean, ElderLawAnswers, January 19, 2004). It held that because a homestead can be freely devised if there is no surviving spouse or minor child, the homestead becomes property of the estate and is subject to division in accordance with the established classifications giving some gifts priority over others.
The Supreme Court of Florida reverses, holding that if a decedent is not survived by a spouse or minor child, the decedent's homestead property passes to the residuary devisees, unless the testator specifically orders the property to be sold and the proceeds made a part of the general estate. According to the court, "while it is true that a decedent may devise protected homestead property in his or her will if there is no surviving spouse or minor child, the property may only pass as a general asset of the estate by a specific devise."
To download the full text of this decision in PDF format, go to: http://www.floridasupremecourt.org/decisions/2005/sc04-1243.pdf and click on "Opinions." (If you do not have the free PDF reader installed on your computer, download it here.)
Last Updated: 10/16/2005
The Florida Supreme Court rules that if a decedent does not have a surviving spouse or child, homestead property that is not specifically devised passes to the residuary devisees, not the general estate. McKean v. Warburton (Fl., No. SC04-1243, September 8, 2005).
Henry Pratt McKean II had a will leaving a specific cash bequest of $150,000 to Peter Warburton and the remainder to his brothers. When he died, he had only a homestead property valued at $140,000 and nominal assets. Without the homestead property, the estate's assets did not satisfy creditor's claims and the specific bequest.
Mr. Warburton argued that the homestead property should be used to fund his specific bequest. Mr. McKean's brothers argued that it should pass to them through the residuary clause.
The court of appeals ruled that Mr. Warburton was entitled to the property (Warburton v. McKean, ElderLawAnswers, January 19, 2004). It held that because a homestead can be freely devised if there is no surviving spouse or minor child, the homestead becomes property of the estate and is subject to division in accordance with the established classifications giving some gifts priority over others.
The Supreme Court of Florida reverses, holding that if a decedent is not survived by a spouse or minor child, the decedent's homestead property passes to the residuary devisees, unless the testator specifically orders the property to be sold and the proceeds made a part of the general estate. According to the court, "while it is true that a decedent may devise protected homestead property in his or her will if there is no surviving spouse or minor child, the property may only pass as a general asset of the estate by a specific devise."
To download the full text of this decision in PDF format, go to: http://www.floridasupremecourt.org/decisions/2005/sc04-1243.pdf and click on "Opinions." (If you do not have the free PDF reader installed on your computer, download it here.)
