RUTH JURMU HARTWELL, PETITIONER,
v.
JANE BLASINGAME, RESPONDENT
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The court held that an adult child, who is neither a surviving spouse nor a minor child, cannot claim constitutional protection for homestead property devised by the owner.
[1] A decedent's homestead property is not subject to devise if the owner is survived by a spouse or minor child, unless the homestead is devised to the owner's spouse and th…
[2] A surviving spouse's waiver of homestead rights is binding and removes constitutional restrictions on devising homestead property when the decedent is survived by no mino…
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Join FLexlaw to unlock all legal intelligenceAn adult child appealed the denial of homestead status for a house devised to her former husband by her father. The father's surviving spouse had waiv…
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HARDING, Justice.
We have for review Hartwell v. Blasingame, 564 So. 2d 543 (Fla. 2d DCA 1990), in which the Second District Court of Appeal construed article X, section 4, Florida Constitution.1 We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution. Based upon our recent decision in City National Bank v. Tescher, 578 So. 2d 701 (Fla.1991), we approve the decision below.
In Tescher, we held that “when a decedent is survived by no minor children and the surviving spouse has waived homestead rights, there is no constitutional restriction on devising homestead property.” Id. at 703.
The facts of the instant case are virtually identical to those presented in Tescher. Here, Ruth Jurmu Hartwell, an adult child, appealed an order entered in the probate of the estate of Reino Wilho Jurmu, her father. The order denied the homestead status of a house that Jurmu devised to Harold Smith, Hartwell’s former husband. Jurmu’s surviving spouse had validly waived her constitutional homestead rights in a prenuptial agreement. However, Hartwell claimed that the spouse’s waiver was not binding on her as a statutory heir and lineal descendant of Jurmu, and, thus, the devise was in violation of article X, section 4(c) of the Florida Constitution.
On appeal, the district court held that Hartwell was not entitled to seek the protection of this constitutional provision, as she fell into neither of the classes which the provision is intended to protect (surviving spouses and minor children). Accordingly, the court held that the devise was valid under the Florida Constitution and Florida statutory law. Hartwell, 564 So. 2d at 546. Based upon the holding in Tescher, we approve the decision of the district court of appeal in Hartwell.
It is so ordered.
SHAW, C.J., and OVERTON, McDONALD, BARKETT, GRIMES and KOGAN, JJ., concur. . Article X, section 4(c) provides in pertinent part:
(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child.
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Citator
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Chames v. DeMAYO, 972 So. 2d 850 (Fla. 2007)…Blasingame, 564 So. 2d 543, 545 (Fla. 2d DCA 1990) ("[W]e see no reason for the state to prohibit [the surviving spouse] from validly waiving her homestead rights at the inception of the marital relationship which invoked those rights.”), approved, 584 So. 2d 6 (Fla.1991); In re Amendment to the Rules Regulating the Fla. Bar — Rule 4,-1.5(f)(4,)(B) of the Rules of Profl Conduct, 939 So. 2d 1032, 1038 (Fla.2006) (“Florida’s highly valued constitutional homestead protection is subject to waiver.”). However,…
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In re Amendment TO THE Rules Regulating THE Fla. Bar-Rule 4-1.5(F)(4)(B) OF THE Rules OF Prof'l Conduct, 939 So. 2d 1032 (Fla. 2006)…waive [homestead] protection, it has long been recognized that an individual is free to knowingly and intelligently fore-go a right which is intended to protect only the property rights of the individual who chooses to make the waiver.”), approved, 584 So. 2d 6 (Fla.1991). We also note that nothing in the plain language of article I, section 26 prohibits a waiver of the rights granted. Nevertheless, in the context of this rules case, we decline to actually determine the legal issue of whether the rights gr…
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Stone v. Stone, 157 So. 3d 295 (Fla. 4th DCA 2014)…ving minor children and the surviving spouse has waived her homestead rights, there is no constitutional restriction on the devise of the homestead. City Nat’l Bank of Fla. v. Tescher, 578 So. 2d 701, 703 (Fla.1991); see also Hartwell v. Blasingame, 584 So. 2d 6 (Fla.1991) (finding that an adult child was not entitled to seek the protection of the constitutional homestead devise restrictions where the surviving spouse had validly waived her homestead rights because [*305] the child was bound by the spouse’s…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City Nat'l Bank OF Fla. v. Tescher, 578 So. 2d 701 (Fla. 1991)
- Hartwell v. Blasingame, 564 So. 2d 543 (Fla. 2d DCA 1990)