584 So. 2d 6 | Fla. | 1991
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.
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.
It is so ordered.
. 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.
