SANTO J. CAPOCCIA, JR., AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SANTO J. CAPOCCIA, SR., DECEASED, APPELLANT,
v.
BOBBIE JEAN CAPOCCIA, MICHAEL KOWALSKY AND DARLA KOWALSKY, APPELLEES
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A Florida appellate court affirmed a summary judgment that declared Bobbie Jean Capoccia, who was convicted of murdering her husband Santo J. Capoccia, Sr., retained a one-half interest in property formerly held as a tenancy by the entireties, with the right of survivorship severed by statute. The court rejected the son's argument that the killer should forfeit all interest in the property.
The killer retains a one-half interest in property formerly held as a tenancy by the entireties, but the right of survivorship is severed by Florida Statute § 732.802(2), so the decedent's share passes to his estate as if the property had been held as a tenancy in common. The killer's one-half interest may be lawfully encumbered and is subject to foreclosure.
[1] A spouse who unlawfully and intentionally kills the other spouse severs the tenancy by the entirety, terminating the killer's right of survivorship.
[2] Upon one spouse murdering the other, property held as a tenancy by the entirety is treated as if it were formerly held as a tenancy in common.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Any joint tenant who unlawfully and intentionally kills another joint tenant thereby effects a severance of the interest of the decedent so that the share of the decedent passes as the decedent's property and the killer has no rights by survivorship.”
The statutory provision at issue establishing the core rule that the killer's survivorship rights are severed but the killer retains a one-half interest.
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Join FLexlaw to unlock all legal intelligenceSanto J. Capoccia, Sr. and his wife Bobbie Jean Capoccia owned property as a tenancy by the entireties. Bobbie Jean was adjudicated guilty of murderin…
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DANIEL S. PEARSON, Judge.
This is an appeal from a summary final judgment (1) declaring Bobbie Jean Capoc-cia to be the owner of a one-half interest in certain property formerly owned as a tenancy by the entireties with her deceased husband, Santo J. Capoccia, Sr. and (2) foreclosing a mortgage held by the Kowal-skys encumbering Mrs. Capoccia’s one-half interest.1 The appellant, the son of the decedent and the personal representative of his father’s estate, contends on this appeal, as he did below, that the whole of the property belongs to his father’s estate because Bobbie Jean Capoccia, having been adjudicated guilty of the murder of Mr. Capoccia, had no interest in the property which could be lawfully encumbered after Mr. Capoccia’s death.
We reject the appellant’s contention and affirm the trial court’s judgment.
Section 732.802(2), Florida Statutes (Supp.1982), pertinent here, provides:
“Any joint tenant who unlawfully and intentionally kills another joint tenant thereby effects a severance of the interest of the decedent so that the share of the decedent passes as the decedent’s property and the killer has no rights by survivorship. This provision applies to joint tenancies with right of survivorship and tenancies by the entirety in real and personal property; joint and multiple-party accounts in banks, savings and loan associations, credit unions, and other institutions; and any other form of coown-ership with survivorship incidents.”
This provision, added in 1982, was one of several said to be designed to prevent a killer from receiving property passing outside a decedent’s estate. Prudential Ins. Co. v. Baitinger, 452 So. 2d 140 (Fla. 3d DCA 1984).
As the court noted in Baiting-er, the prior statute (now subsection (1) of Section 732.802) merely precluded thé killer from receiving benefits “from the decedent or to take any part of his estate as a devisee.” § 732.802, Fla.Stat. (1981).
It appears, however, that even before the addition of subsection (2), the equitable principle that no one shall be permitted to profit by his own wrongdoing served to defeat the claim of a murderer, as surviving spouse, to the whole of an estate by the entirety. Ashwood v. Patterson, 49 So. 2d 848 (Fla.1951).
Instead, the long-standing rule in Florida in such a case is that an estate by the entirety is deemed severed when one spouse murders the other, and the property is to be treated as if it had been formerly held as a tenancy in common. Hogan v. Martin, 52 So. 2d 806 (Fla.1951); Ashwood v. Patterson, 49 So. 2d 848; In re Estate of Nunnelley, 343 So. 2d 657 (Fla. 2d DCA 1977).
This rule — expanded to cover all forms of ownership with sur-vivorship incidents — was codified with the enactment of Section 732.802(2).
The appellant’s argument that the killer cannot retain even a one-half interest in the entireties property merits little discussion. First, such an argument was rejected in Ashwood v. Patterson; second, the express language of subsection (2) does not call for the complete termination of the killer’s in terest in the property but merely the termination of the right of survivorship; and third, fundamental rules of statutory construction prevent us from writing into subsection (2), as the appellant urges, the language deliberately set forth in subsections (1) and (3), that the disposition of the property is to be “as if [or as though] the killer had predeceased the decedent.”
Accordingly, the judgment under review is
Affirmed.
. The instrument executed by Mrs. Capoccia in favor of United Mortgage Company, the Kowal-skys’ assignor, purported to mortgage the whole of the property. Notwithstanding that the Kow-alskys were, without dispute, bona fide purchasers for value of the mortgage, they do not now claim that they are entitled to foreclose on more than Mrs. Capoccia’s one-half interest and have not cross-appealed the lower court’s judgment limiting their relief. See § 732.802(6), Fla.Stat. (Supp.1982).
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LoCASCIO v. Sharpe, 23 So. 3d 1209 (Fla. 3d DCA 2009)…have been vested with sole title to the residence at the time of her death, and that exclusive title would then have passed to the Son under Florida’s law of intestate succession. We have previously rejected this argument. In Capoccia v. Capoccia, 505 So. 2d 624 (Fla. 3d DCA 1987), this Court reconciled subsections (1) and (2) of the statute, explaining that “the express language of subsection (2) does not call for the complete termination of the killer’s interest in the property but merely the termination…
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Lopez v. Rodriguez, 574 So. 2d 249 (Fla. 3d DCA 1991)…statute does not provide that the killing effects a revocation or disaffirmance of a Totten trust. Moreover, the rules of statutory construction preclude this court from rewriting section 732.802(2) to effect such a revocation. Capoccia v. Capoccia, 505 So. 2d 624 (Fla. 3d DCA 1987). It is well settled that absent a settlor’s revocation or disaffirmance, “the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor.” Seymour v. Seymour, 85 So. 2d 726, 727 (…
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Julia v. Russo, 984 So. 2d 1283 (Fla. 4th DCA 2008)…’s Slayer Statute, section 732.802(2), Florida Statutes (2006).1 If the Slayer Statute is applied, appellant’s right of survivorship is extinguished and the accounts became tenancies in common at the time the decedent died. See Capoccia v. Capoccia, 505 So. 2d 624 (Fla. 3d DCA 1987). In the order denying appellant’s motion, the trial court found that there is no presumption of a gift of personal property between unmarried tenants in common, citing Grieco v. Grieco, 917 So. 2d 1052 (Fla. 2d DCA 2006), and Crou…
Authorities Cited
- Ashwood v. Patterson, 49 So. 2d 848 (Fla. 1951)
- The Prudential Ins. Co. OF Am., Inc. v. Baitinger, 452 So. 2d 140 (Fla. 3d DCA 1984)
- Hogan v. Martin, 52 So.2d 806 (Fla. 1951)
- In re the Est. of Flossie L. Nunnelley v. Nunnelley, 343 So. 2d 657 (Fla. 2d DCA 1977)