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Can a “Potential Heir” Seek a Determination of Homestead Status in Florida?


The Florida Constitution provides broad protections for a person’s primary residence or “homestead.” This protection takes a number of forms. One of them is actually a restriction on the devise of the homestead property. Basically, if the owner is survived by a spouse or a minor child, they cannot leave the homestead property to someone else in their will. If there is no surviving spouse or minor child, however, the owner is free to dispose of the property as they wish.

Florida Courts Reject Disinherited Son’s Attempt to Insert Himself in Probate of Father’s Estate

The Florida Third District Court of Appeal recently considered the standing of a disinherited adult child from seeking a determination of someone else’s homestead rights. This particular case, Rudnikas v. Gonzalez, involved the adult son of a deceased Florida resident (the decedent). The decedent died several years ago and left a will, which left his entire estate to his mother. As a contingency, the will provided that if the mother did not survive the decedent, his entire estate would then go to his daughter, except for $1 left to the son.

Sometime after the decedent’s will was admitted to probate, a separate guardianship proceeding was initiated against the mother, who was determined to be incapacitated. The son then attempted to intervene in his father’s probate proceeding, seeking a “determination that the benefits of home protection” in his late father’s home vested in his grandmother “as a qualified beneficiary.”

The probate court refused to consider the son’s argument, however, because he lacked standing to even make such a claim. The son appealed. The Fourth District upheld the probate court’s ruling. Under Florida Probate Rules, only an “interested person” can seek a homestead determination. The appellate court noted that while there is no precise definition of “interested person” in the rules, Florida appellate courts have traditionally held that a “disinherited child is not an interested person for the purposes of probate proceedings.”

In this case, the son was not a beneficiary under the terms of his father’s will. More to the point, his father was unmarried and his children were adults at the time of his death. The constitutional homestead restriction on the devise of homestead property therefore did not apply to this case. At best, the son might be a beneficiary of his grandmother’s estate, but the Fourth District pointed out that “any such right has not yet vested” as the grandmother is still alive. And in any case, that would require a separate probate proceeding.

Speak with a Pompano Beach Estate and Trust Litigation Lawyer Today

The death of a family member often raises delicate legal questions. If you are involved in such a scenario it is best to work with an experienced Pompano Beach estate and trust litigation attorney who can advise you of your rights and represent you in any official probate proceedings. Call the offices of Mark R. Manceri, P.A., today at 954-491-7099 or contact us online to schedule your initial consultation.



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