Florida/Georgia Personal Injury & Workers Compensation

...§§ 61.071, 61.08); the right to an elective share in the estate of a deceased spouse (Fla.Stat. § 732.102); the right to enter into a gestational surrogacy agreement (Fla.Stat. § 742.15(1)); distribution rights in *1206 homestead property (Fla. Stat. § 732.401; Fla....

...The will contained a provision which left his mother a life estate in the residence with the remainder going to his sons. In the probate proceedings, however, it was determined that the residence was Johnson's homestead and consequently was not subject to devise. [1] See Art. X, § 4, Fla. Const.; § 732.401-.4015, Fla. Stat. (1981). It therefore passed directly to Johnson's children pursuant to section 732.401, Florida Statutes (1981)....

...The probate court, however, determined that the residence was Johnson's homestead within the meaning of article X, section 4 of the Florida Constitution. Since Johnson was survived by a minor child, the homestead was not subject to devise. Art. X, § 4(c), Fla. Const.; § 732.4015, Fla....

...NOTES [1] There is no dispute over the determination that the residence was Johnson's homestead within the meaning of the Florida Constitution, and that it was not subject to devise because Johnson was survived by a minor child. Art. X, § 4(c), Fla. Const.; § 732.4015, Fla. Stat. (1981). [2] It is apparent that either Johnson's spouse predeceased him or their marriage had been dissolved. Therefore, in accordance with the Florida Statutes, the homestead passed directly to Johnson's children. See § 732.401(1); § 732.103(1)....

...rced sale of the premises involved and the testator had asserted his homestead exemption. Id. at 142. Similarly, in Holden v. Estate of Gardner, 420 So.2d 1082, 1085 (Fla. 1982), the Florida Supreme Court held that the use of the term "homestead" in Section 732.4015, Florida Statutes (1979) (which concerns the devise of homestead) refers to homestead as that term is used in the Florida Constitution....

...Before us now is a question of sibling rivalry, not cold-blooded creditors seeking to throw the family out in the street. In the case at bar, if the homestead status is upheld, the property does not pass under the will and instead all the children share in it under Section 732.401, Florida Statutes (1983)....

...Should either [sic] of my said children predecease me the share and property otherwise going to my said child shall go to the lineal descendant (or lineal descendants, in equal shares, per stirpes and not per capita ) of my said child who shall survive me. [3] Currently section 732.401, Florida Statutes (1987).

...Cleeves, each appeal a trial court order which held that an undivided one-half interest in the decedent's homestead property passed to the surviving spouse, Valentina B. Cleeves, under the decedent's will and that the remaining undivided one-half interest descended in accordance with the provisions of section 732.401, Florida Statutes (1985)....

...Cleeves, the surviving spouse, passed under article III of the will. The court further found that article III of the decedent's will was ineffective to pass the remaining one-half interest in the homestead property to David B. Cleeves and that, therefore, section 732.401 applied to that one-half so that the surviving spouse took a life estate in that half with a vested remainder in the lineal descendants in being at the time of the decedent's death, namely the decedent's five adult children and his three adult grandchildren....

...This timely appeal followed. Appellant, Truda C. Jewett, contends that under Florida law, the decedent's attempt to devise the homestead property in equal shares to his wife and son is invalid. We agree. Article X, section 4(c) of the Florida Constitution and section 732.4015, Florida Statutes (1985) provide that homestead property shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the spouse if the owner is not survived by any minor children....

...as well as the attempted devise of a comparable interest to his son is contrary to the constitutional and statutory homestead provisions as well as the supreme court's holding in Finch, the property must descend in accordance with the provisions of section 732.401(1)....

...In re Estate of Skuro, 467 So.2d 1098 (Fla. 4th DCA 1985); Art. V, § 3(b)(4), Fla. Const. The issue involved is whether title to homestead property which had been contracted for sale by the owner prior to his death passes under the terms of the decedent's will or under the provisions of section 732.401(1), Florida Statutes (1983)....

...would not deprive the daughter of the exemption. The heir points out that if a decedent dies intestate, leaving a surviving spouse and a lineal descendant, the surviving spouse receives a life estate and the lineal descendant has a vested remainder [section 732.401(1), Florida Statutes (1991)], and both the spouse's life estate and the vested remainder would be protected as homestead....

...tion 222.19(1), Florida Statutes (1983), which had provided that it was the declared intention of the legislature that the purpose of the constitutional exemption of the homestead was to shelter the family and the surviving spouse. At the same time, section 732.401, Florida Statutes (1985), *221 which provides the means by which homesteads shall descend, remained unchanged....

...In any event, the language of article X, section 4, is clear and unambiguous. The homestead may not be devised if the owner is survived by a spouse or minor child. Because John Scholtz died leaving a spouse, the descent of his property is controlled by section 732.401(1), Florida Statutes (1987)....

...Jurmu's surviving spouse, Ivadelle Purdue Jurmu, validly waived her constitutional homestead rights to this house in a prenuptial agreement pursuant to section 732.702, Florida Statutes (1979). Ms. Hartwell's statutory rights as an heir or lineal descendant, pursuant to section 732.401(1), Florida Statutes (1987), do not give her separate homestead rights or the authority to override the surviving *544 spouse's valid waiver of homestead....

...Ivadelle Purdue Jurmu did not challenge the validity of her prenuptial agreement. She apparently is content to honor her agreement and to permit the house to be inherited by Mr. Smith. Ms. Hartwell, however, maintains that the house was homestead at the time of Mr. Jurmu's death and that it must descend pursuant to section 732.401(1), Florida Statutes (1987), because Mr....

...se, and the rights of the surviving spouse to homestead, exempt *545 property, and family allowance, or any of them, may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party. Section 732.4015, Florida Statutes (1987), provides: As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except that the homestead may be devised to the owner's spouse if there is no minor child. Section 732.401(1), Florida Statutes (1987), provides: If not devised as permitted by law and the Florida Constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and lineal...

...agreement. Admitting the fact that Ivadelle Jurmu is a surviving spouse, the first issue is whether she had the right to make a knowing and intelligent waiver of both her constitutional right under article X, section 4, and her statutory right under section 732.4015....

...rotection in a probate proceeding beyond the surviving spouse and minor children. [5] See In re Estate of Scholtz, 543 So.2d 219 (Fla. 1989). Thus, Ms. Hartwell has no right to seek the protection of this constitutional provision. On the other hand, section 732.401(1) may give Ms....

...If the surviving spouse's waiver is valid, the lineal descendant has no statutory claim to the property. Because we hold that the "law and the Florida Constitution" permit this devise when the surviving spouse has signed a valid waiver, the rule of descent provided in section 732.401(1), Florida Statutes (1987), does not apply in this case and the trial court correctly upheld the terms of Mr....

...The issue raised on appeal, of course, is whether John J. Cavanaugh was head of the household for purposes of determining whether the property on which he resided at death was homestead under the meaning of article X, section 4, Florida Constitution, and section 732.401(1), Florida Statutes. [2] Section 732.401(1) provides: If not devised as permitted by law and the Florida Constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and lineal descendants, the survivin...

...e in the homestead, with a vested remainder to the lineal descendants in being at the time of the decedent's death. Appellants argue that the property in the instant case was homestead improperly devised, and therefore should pass in accordance with section 732.401(1) to them in equal undivided shares....

...Competing with appellee's position that homestead was a justiciable issue for res judicata purposes are the history and nature of homestead and the rights and exemptions inuring thereby to the persons entitled to it under article X, section 4, of the Constitution of Florida, and sections 732.401 and 732.4015, Florida Statutes....

...In circumstances such as the present, where the homestead is not devised as permitted by law and the constitution, and the decedent is survived by a spouse and lineal descendants, the homestead passes outside of the will and thereby outside of probate by virtue of section 732.401....

...Res judicata applies only *1352 "[w]here the second suit is upon the same cause of action and between the same parties as the first... ." Albrecht, 444 So.2d at 12. Here, the homestead benefit was not previously litigated or required to be litigated, but rather, inured to appellants and appellee by virtue of section 732.401(1)....

...[6] We also disagree with appellee's position that appellants were parties during the probate proceedings in order to establish the second element of res judicata — identity of parties. Appellants were not actual parties to the proceedings and the fact of their merely being homestead beneficiaries by virtue of section 732.401(1) did not accord them party status "in the sense they can be held to have waived their position by not having sought adjudication or clarification of the matter during probate." Bourgeois v....

...We do not have that issue before us. [5] Indeed, at the time of the probate of Cavanaugh's estate, appellants maintain that they were of the impression the estate had passed in fee simple to their mother which would have been a proper devise under the constitution and section 732.4015....

...When the fee owner of homestead dies intestate “survived by a spouse and lineal descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the lineal descendants in being at the time of the decedent’s death.” § 732.401(1), Fla....

...”)) had been Mr. Clemons’s sole survivor(s), would the summary judgment be affirmable in toto — and she has pleaded the existence of other survivors. Upon his death, the remainder vested in his lineal descendants, per stirpes, pursuant to sections 732.104 and 732.401(1), Florida Statutes (2000)....

...0. (b) These exemptions shall inure to the surviving spouse or heirs of the owner. (c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child... . Additional provisions relating to homestead appear in sections 732.401 [1] and 732.4015, [2] Florida Statutes (1977)....

...NESBITT, Judge (specially concurring): I concur in the result and judgment rendered by the majority. The real property in question constituted the homestead of the decedent at the time of his death and, pursuant to Article X, Section 4 of the Florida Constitution and Section 732.4015, Florida Statutes (1977), was not subject to a devise because he was survived by his spouse to whom the real property homestead passed under the law of intestate succession, pursuant to Section 732.401(1), Florida Statutes (1977)....

...Lloyd of Osborne & Hankins, Boca Raton, for respondent. ADKINS, Justice. We are asked to review the decision of the Fourth District Court of Appeal, reported at 383 So.2d 755, which passed on the validity and the compatibility of article X, section 4(c), of the Florida Constitution, and sections 732.4015 and 732.401(1), Florida Statutes (1977), relating to the devise of homestead property....

...Finch, respondent herein, moved to set aside the devise as homestead real estate. Her petition alleged that the property in question was homestead, that decedent was survived by a spouse and lineal descendants, and that the property should descend as provided in section 732.401(1), Florida Statutes (1977)....

...the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be provided by law. Similarly, section 732.4015, Florida Statutes (1977), states: As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except that the homestead may be devised to the owner's spouse if there is no minor child. If a devise violates the Florida Probate Code and constitution, it descends by way of intestate succession, pursuant to section 732.401(1), Florida Statutes (1977), as follows: (1) If not devised as permitted by law and the Florida Constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and...

...f his choosing with a vested fee simple remainder interest, and that neither the statutes nor the constitution should frustrate this expressed intent. Furthermore, petitioner argues that neither the Florida Constitution, article X, section 4(c), nor section 732.4015, Florida Statutes, requires that the devise to the surviving spouse must be in fee simple absolute....

...e and prohibits the testator from devising less than a fee simple interest to his surviving spouse under the circumstances presented herein. Since the devise here was not a permitted one under the Constitution, the property passed in accordance with section 732.401(1), Florida Statutes (1977)....

...." (Emphasis supplied.) However, homestead property for purposes of descent and distribution does not include property owned by the decedent and the surviving spouse as tenants by the entireties. This prohibition is found not only in the express language of § 732.401(2), Fla....

...ion, since the appellee's deceased husband was a natural person who owned and occupied the property at the time of his death. Article X, Section 4(c) provides that the homestead is not subject to devise if the owner is survived by a spouse. Also see § 732.4015, Fla. Stat. (1985). In this case the owner was survived by his spouse, the appellee, although they were living apart at the time of the owner's death. Section 732.401 provides that the homestead property will descend in the same manner as other intestate property, which means in this case that it will go to the appellee, there being no lineal descendants of the deceased. See § 732.4015....

...by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law. Additionally sections 732.401 and 732.4015, Florida Statutes (1987) provide statutory support for the above constitutional provision. 732.401 Descent of homestead....

...s in being at the time of the decedent's death. (2) If the decedent was domiciled in Florida and resided on real property that the decedent and the surviving spouse owned as tenants by the entirety, the real property shall not be homestead property. 732.4015 Devise of homestead....

...Hulsh v. Hulsh, 431 So.2d 658 (Fla. 3d DCA 1983). The court in Hulsh said the waiver was the "functional equivalent of death" of the wife. Thus, because there was no surviving wife or minor children the property properly went under the will. Because section 732.401, above set out, defines how homestead property descends, the appellants have an interest to have the property pass as homestead....

...No constitutional or other attack has been made against this statute and we can determine no reason to not apply it here. When Sonia waived her homestead rights she did so for all purposes and no one can claim a right through her. Appellants urge that section 732.401 somehow vests some rights in them....

...use, the homestead property cannot be devised to anyone and it descends as provided by the legislature by statute. The legislature understands this constitutional provision to authorize it to decide how the homestead should pass in this event and by section 732.401(1), Florida Statutes, has specifically provided that "the homestead shall descend in the same manner as other intestate property ......

...Under this statute, the children (perhaps minor children) of a deceased child of a homesteader would likewise inherit a deceased adult child's share of the ancestor's homeplace but not under the majority opinion. While the majority opinion purports to only hold that the constitution "primarily controls" rather than section 732.401(1), Florida Statutes, the real but latent effect is to not only hold that the statute is unconstitutional, but to hold that the legislature cannot constitutionally provide for the descent of the homestead other than to the surviving spouse and minor children....

...450 (Fla. 1971) and In re Estate of McCartney, 299 So.2d 5 (Fla. 1974), there is a significant difference between the terms "lineal descendants" and "minor children" and that the legislature knows this difference and when the legislature provided in section 732.401(1), Florida Statutes, that the homestead shall descend to the spouse and "lineal descendants," the legislature meant "lineal descendants" and not minor children. It is the majority opinion that assumes that the legislature does not understand that lineal descendants and heirs of the homesteader include "adult" children as well as "minor" children, all of whom under the present statute, section 732.401(1), Florida Statutes, inherit an interest *638 in the homestead....

...y should pass, rather than permitting that decision to be made by the specific homesteader as to his specific homestead. This is plan, clear and simple enough. [4] The next question is what is the intent of the legislature as to this proposition. By section 732.401(1) and section 732.4015, Florida Statutes, the legislature has clearly answered that question by providing for the homestead to descend to the homesteader's spouse, if any, for life, and to the homesteader's "lineal descendents" rather than to the homestead...

...constitution and the statutes and substitute its preference for that of the people who adopted the constitution and elected the legislature for the purpose of exercising the legislative function and making public policy by enacting statutes, such as section 732.401(1), Florida Statutes....

...er life estate in her husband's homestead, the homesteader was nevertheless survived by a spouse and, under the constitution, the result is that the homesteader could not devise his homestead, and his attempt to do so was invalid. At his death under section 732.401(1), Florida Statutes, the homesteader's homestead property passed to his lineal descendants who inherited it as homestead....

...Upon her death, without exercise of this power, the remainder interests of Edward and Robert will give them unencumbered fee title to the residence property. AFFIRMED in part; REVERSED in part. DAUKSCH, C.J., and ORFINGER, J., concur. NOTES [1] See § 732.401, Fla....

...The decedent, Marion Bentley Wall, was the grandmother and guardian of Terry Bentley and had custody of her grandson at the time of her death. Marion Wall specifically provided for Terry in her will. Through a guardian ad litem, Terry filed the petition to claim the benefits of the homestead law. Fla. Stat. § 732.401, § 732.4015; Fla....

...For the foregoing reasons, we reverse and remand with directions to enter final judgment for the plaintiff. REVERSED AND REMANDED. RYDER, C.J., and OTT, J., concur. NOTES [1] The holding of the supreme court in Denham v. Sexton, supra , is now part of Florida statutory law. § 732.401(2), Fla....

...*667 Mike Krasny of Krasny and Dettmer, P.A., Melbourne, for petitioner. Charles R. Gardner and Bruce I. Wiener of Gardner, Shelfer, Duggar & Bist, P.A., Tallahassee, for respondents. SHAW, Justice. We have before us the following certified question: WHETHER SECTION 732.401(1), FLORIDA STATUTES (1991), WHICH VESTS A REMAINDER INTEREST IN HOMESTEAD PROPERTY IN LINEAL DESCENDANTS, IS UNCONSTITUTIONAL WHEN APPLIED TO DEFEAT A TESTATOR'S INTENT TO DEVISE HOMESTEAD PROPERTY EQUALLY TO ADULT STEPCHILDREN AS WELL AS ADULT LINEAL DESCENDANTS? King v. Ellison, 622 So.2d 598, 600 (Fla. 4th DCA 1993). We review the district court's decision pursuant to jurisdiction granted under article V, section 3(b)(4) of the Florida Constitution. We find that no conflict exists between section 732.401(1), Florida Statutes (1991), and article X, section 4(c) of the Florida Constitution that would render the statute unconstitutional....

...nd within two years of the remarriage passed away. Hubert's will, unchanged from 1973, left his property to his children and stepchildren, share and share alike. However, since the Indian River property was his homestead, its descent was governed by section 732.401(1), Florida Statutes (1991), notwithstanding any provision in his will to the contrary. Pursuant to section 732.401(1), Rosemarie, as surviving spouse, received a life estate in the homestead and Hubert's lineal descendants received a vested remainder. Florence's children (petitioners) brought suit, alleging that section 732.401(1) is unconstitutional because it conflicts with article X, section 4(c) of the Florida Constitution, improperly vests a remainder interest in Hubert's adult lineal descendants, and imposes an improper restraint on the alienation of property. The trial court dismissed the complaint with prejudice. The district court affirmed the trial court's dismissal and certified the above question. The fundamental issue underlying the certified question is whether conflict exists between section 732.401(1) and article X, section 4(c). Section 732.401(1), Florida Statutes (1991), reads: (1) If not devised as permitted by law and the Florida Constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and linea...

...er's spouse if there be no minor child. We find that no conflict exists. Article X, section 4(c), places a restraint on the right to devise homestead, but is silent relative to how the property shall descend when the homestead is improperly devised. Section 732.401(1), however, speaks to this very issue and prescribes the manner in which homestead shall descend when it is not devised pursuant to Florida's laws or constitution. We presume that the legislature knows the meaning of the words employed in a statute and that the words properly express legislative intent. S.R.G. Corp. v. Department of Revenue, 365 So.2d 687 (Fla. 1978). To this end, we find that in section 732.401(1) use of the words "[i]f not devised as permitted by law and the Florida Constitution" evidences a legislative intent to perfect an area of homestead devise left blank by our constitution, i.e., what happens when article X, section 4(c), or the laws of Florida are violated....

...The statute prescribes how property shall descend when not devised as permitted under Florida law or the constitution. [1] Since Hubert died leaving a surviving spouse, his attempt to devise his homestead fails; therefore the homestead descends pursuant to section 732.401(1), i.e., the spouse takes a life estate and the lineal descendants take a vested remainder....

...It is so ordered. GRIMES, C.J., OVERTON and HARDING, JJ., and McDONALD, Senior Justice, concur. KOGAN, J., concurs specially with an opinion, in which HARDING, J., concurs. KOGAN, Justice, specially concurring. I concur with the majority's conclusion that section 732.401(1), Florida Statutes (1991), does not conflict with article X, section 4(c) of the Florida Constitution. I also agree that section 732.401(1) does not improperly restrain the right to devise homestead property. It is article X, section 4(c) and section 732.4015, which mirrors the constitutional provision, that restrict the right to devise a homestead. Section 732.401(1) is merely the legislative statement of how homestead property will descend if not devised as permitted by article X, section 4(c). I write separately to point out that our opinion today should not be read to somehow *669 limit the application of section 732.401(1) to situations where there has been an attempt to devise homestead property in a manner other than that permitted by the constitution. Section 732.401(1) controls the descent of homestead property where the owner of the homestead dies intestate as well as where, as here, there has been an invalid attempt to devise the homestead....

...The parties subsequently filed cross motions for summary judgment. On November 18, 2011, the trial court entered a final summary judgment in favor of Nancy. The trial court found that the QPRT was an irrevocable trust, meeting the requirements of section 732.4017, Florida Statutes (2010)....

...Section 4(c) protects the surviving spouse and minor children from having the homestead property transferred out from under them by the other spouse (or other parent) without the consent of both spouses. The corresponding statutory provision is section 732.4015, Florida Statutes, entitled “Devise of homestead.” It states: (1) As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or a minor child or m...

...sed to the surviving spouse as authorized by law and the constitution, and the surviving spouse’s interest is disclaimed, the 4  disclaimed interest shall pass in accordance with chapter 739. § 732.4015, Fla....

...See Engelke, 921 So. 2d at 697. Inter Vivos Transfer of Homestead Property Notwithstanding the homestead devise restrictions, property owners may give away or dispose of homestead property during their lifetimes, including by transfer to a trust. Section 732.4017, Florida Statutes, provides: (1) If the owner of homestead property transfers an interest in that property, including a transfer in trust, with or without consideration, to one or more persons during the owner’s lifetime, the transfer is not a devise for purposes of s. 731.201(10) or s. 732.4015, and the interest transferred does not descend as provided in s. 732.401 if the transferor fails to retain a power, held in any capacity, acting alone or in conjunction with any other person, to revoke or revest that interest in the transferor. (2) As used in this section, the term “tr...

...he transferor to revoke or revest the interest in the transferor, including, without limitation, survival of the transferor. (4) It is the intent of the Legislature that this section clarify existing law. § 732.4017, Fla....

...his estate at the time of his death. See Baskies, supra, at 75; Borrok, supra, at 36; Humphreys, supra, at 45. The settlor thus gains the tax advantages of a QPRT only by surviving the term of the trust. QPRTs are permitted under Florida law by section 732.4017, Florida Statutes, and under the federal tax code by Internal Revenue Code section 2702(a)(3)(A)(ii) and Treasury Regulation section 25.2702-5(c)....

...The issue before the trial court was whether the transfer of Jerome’s interest in the property to Nancy after Jerome’s death was an impermissible devise of homestead property. The court found that Jerome’s QPRT satisfied the requirements of section 732.4017, and, therefore, the QPRT was the owner of the property at the time of Jerome’s death and the transfer of the property to Nancy was not a devise for the purpose of the homestead devise restrictions. On appeal, Ross argues that (1) given the control retained by Jerome, the trial court erred in applying section 732.4017; (2) the trial court erred in retroactively applying section 732.4017, which was enacted in 2010, to the QPRT created in 2000; and 7 (3) because the property passed to Nancy by devise under Jerome’s will, the constitutional and statutory limitations on the devise of homestead property necessarily apply. Ross asserts that Jerome attempted to devise the property to Nancy in a manner contrary to Florida law, and, therefore, the attempted devise should fail and the homestead property should descend as if Jerome had died intestate, pursuant to section 732.401, Florida Statutes (2011). If section 732.401 were applied, upon Jerome’s death, Alma would take a life estate with a vested remainder to Ross and Nancy equally. See § 732.401(1), Fla....

...but erred in extending that finding to the transfer of Jerome’s interest in the property to Nancy after Jerome’s death. The latter transfer should have been treated as a devise, subject to the homestead devise restrictions. The trial court properly applied section 732.4017 to the initial transfer of Jerome’s interest in the property to the QPRT. Section 732.4017(1) provides that an inter vivos transfer of homestead property to a trust will not be treated as a devise, provided the settlor did not retain a power to revest the property in himself. See § 732.4017(1), Fla....

...The trial court correctly found that Jerome did not retain the power to revoke or amend the QPRT or to revest the property in himself. Article XX of the trust agreement prohibits the trustee from selling or transferring the property back to Jerome. Section 732.4017(3)(a) expressly allows the settlor to retain an interest in the property in the form of a possibility of reverter. See § 732.4017(3)(a), Fla. Stat. The fact that Jerome retained such an interest does not place Jerome’s transfer of the homestead property outside the parameters of section 732.4017. Ross’ argument that section 732.4017 should not have been applied retroactively is wholly without merit. The statute expressly states that it was intended to clarify existing law. See § 732.4017(4), Fla....

...4th DCA 2008) (finding that an express legislative statement that a statute is intended “to clarify existing law” should be 8 taken as strong evidence of legislative intent that the statute should apply retroactively). Therefore, we find the trial court properly applied section 732.4017 to the transfer of Jerome’s interest in the property to the QPRT and correctly held that this initial transfer was not a devise subject to the homestead devise restrictions. However, we find the trial court erred in extending the application of section 732.4017 to the subsequent transfer of Jerome’s interest in the property to Nancy after Jerome’s death. Nancy argues simply that the property was disposed of pursuant to section 732.4017 and, therefore, the entire transfer was not a devise for the purpose of the homestead devise restrictions....

...he death of the settlor, the trust is not testamentary.”). Ross concedes this point. But, because Jerome failed to outlive the term of the QPRT, the transfer of the property was not completed pursuant to the terms of the trust as permitted by section 732.4017....

...ould ignore the plain fact that, in this case, the property ultimately reverted back to the estate and passed to Nancy through the terms of Jerome’s will, and would allow an improper circumvention of the homestead devise restrictions. Although section 732.4017(3)(a) allows the settlor of a QPRT to retain a 9 possibility of reverter, the statute does not speak to whether subsequent transfers of the property following such a reversion, pursuant to the terms of the settlor’s will, should be treated as a devise....

...and welfare of the state by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune and the demands of creditors.”). Therefore, we find the trial court erred in applying section 732.4017 to find that the transfer of Jerome’s interest in the property to Nancy after Jerome’s death, pursuant to the terms of Jerome’s will, was not a devise. We hold that when a homeowner transfers property to a QPRT pursuant to section 732.4017 and the property later reverts back to the homeowner’s estate because the homeowner fails to survive the term of the QPRT, a subsequent disposition of the property pursuant to the homeowner’s will is a devise....

...Conclusion In conclusion, we find the trial court erred in ruling that the transfer of Jerome’s interest in the property to Nancy after Jerome’s death was not a devise. We hold that when a homeowner transfers property to a QPRT pursuant to section 732.4017, Florida Statutes, and the property later reverts back to the homeowner’s estate because the homeowner fails to survive the term of the QPRT, a subsequent disposition of the property pursuant to the homeowner’s will is a devise, subject to the constitutional homestead devise restrictions....

...In contrast to a contingent remainder, which is granted to a person not yet born, a vested remainder is a remainder interest held by a living person. In re Estate of Rentz, 152 So.2d 480, 483 (Fla. 3d DCA 1963). A vested remainder is a property interest that is recognized under Florida law. Section 732.401 of the Florida Statutes, for example, provides: Chapter 732. Probate Code: Intestate Succession and Wills Part IV. Exempt Property and Allowances 732.401....

...but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent's death per stirpes. Fla. Stat. 732.401(1)(Emphasis supplied)....

...ad property." Id. at 1001-02. (citing Art. X, § 4(a)-(c), Fla. Const.). However, when there is not a surviving spouse or a minor child, as in this case, the decedent's homestead may be devised without limitation. Art. X, § 4(c), Fla. Const (2002); § 732.401(1), Fla....

...ised to the owner's spouse if there be no minor child." Art. X, § 4(c), Fla. Const. Third, the Florida legislature has made clear its command that this provision shall apply equally to property held by a revocable trust as to testamentary bequests. § 732.4015(2)(a), Fla. Stat. (2001); Cutler v. Cutler, 994 So.2d 341, 343 (Fla. 3d DCA 2008); Engelke v. Estate of Engelke, 921 So.2d 693, 697 (Fla. 4th DCA 2006). Finally, section 732.401(1) of the Florida Statutes (2001), provides: (1) If not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one...

...Nat'l Bank & Trust Co. at Miami, 64 So.2d 309 (Fla.1953); Clifton v. Clifton, 553 So.2d 192, 194 n. 3 (Fla. 5th DCA 1989), in a twinkle of an eye, as it were, to his wife for life, and thereafter to his surviving sons, James and Jonathan per stirpes. § 732.401(1), Fla....

...Unkefer, 515 So.2d 757 (Fla. 2d DCA 1987) (life estate); Heiman v. Capital Bank, 438 So.2d 932 (Fla. 3d DCA 1983) (equitable interest); but see Aetna Ins. Co. v. LaGasse, 223 So.2d 727 (Fla. 1969) (remainder interest does not qualify). [3] In 2010, section 732.401 was amended to allow the surviving spouse to elect an undivided one-half interest in the homestead property in lieu of the life estate....

...On April 17, 1980, appellant Cookie Alderman Garris, filed a complaint for declaratory decree seeking a determination that she was the illegitimate child of James H. Cruce and Mary Bell Alderman. Thus, she claimed an interest as a lineal descendant of James H. Cruce pursuant to Section 732.401, Florida Statutes, to one-third of the homestead property....

...The four appellees then moved for an award of attorney's fees pursuant to section 57.105(1), Florida Statutes, contending the suit was frivolous because regardless of whether Mary Jacobs took title to the property through the warranty deed or by operation of law — Florida Constitution, Article X, section 4(c) and section 732.401(1), Florida Statutes — she could receive nothing other than a life estate in the homestead property with a vested remainder to the appellees as the lineal descendants of Jake Jacobs....

...onable argument that, in the absence of the warranty deed, she could have taken thirty percent of the fee interest in the homestead under the residuary clause of Jake Jacobs's will rather than the life estate she would receive by way of operation of section 732.401(1), Florida Statutes (1989)....

...Article X, section 4 of the Florida Constitution provides: (c) The homestead shall not be subject to devise if the owner is survived by a spouse or minor child except the homestead may be devised to the owner's spouse if there be no minor child... . Section 732.401(1), Florida Statutes (1989), in effect at the time of Jake Jacobs's death, provides: If not devised as permitted by law and the Florida Constitution, the homestead shall descend in the same manner as other *32 intestate property; but...

...This argument would, in effect, give the protected party an election, even in the absence of a written waiver executed prior to the spouse's death, concerning whether to accept less than one hundred percent of the fee or whether to take the life estate granted by section 732.401(1)....

...3d DCA 1988). On the authority of Chapman, the lower court held that Ruth C. Sigmund, as surviving spouse, possessed a life estate in the subject property and that the adult children of the deceased possessed a remainder interest, in accordance with section 732.401, Florida Statutes (1991)....

...nd therefore was violative of Article X, section 4 of the Florida Constitution, the homestead provision. Accordingly, Mrs. Hendrickson sought to have the devise set aside and the property pass under Article X, section 4(c), Florida Constitution, and section 732.401(1), Florida Statutes (1985)....

...resided on or held any title to the property. After her father's death and upon discovering his will contained no specific devise of the Clay County property, Van Pelt filed a motion to determine its status, contending it should descend pursuant to Section 732.401(1), Florida Statutes (1983), which provides for the descent of homestead property where the decedent is survived by both a spouse and lineal descendants....

the property should descend as provided in Section 732.401(1), Florida Statutes (1977). The trial court

...Committee notes revised. 2003 Revision: Committee notes revised. 2007 Revision: Committee notes revised. Constitutional Reference [No Change] Statutory References § 731.104, Fla. Stat. Verification of documents. § 731.201(29)(31), Fla. Stat. General definitions. § 732.401, Fla. Stat. Descent of homestead. § 732.4015, Fla....

...Davis's estate was subsequently commenced, the appellant petitioned to have the entire tract of land and improvements thereon declared homestead under article X, section 4, thereby precluding devise of the land and improvements under Mr. Davis's will [1] and requiring that the land and improvements descend in accordance with section 732.401(1), Florida Statutes (2000)....

...eview is reversed and this case is remanded. DAVIS and BENTON, JJ., concur. NOTES [1] Article X, section 4(c) provides, in relevant part, that "[t]he homestead shall not be subject to devise if the owner is survived by spouse or minor child ..." [2] Section 732.401(1) (2000) provided: 732.401 Descent of homestead.— (1) If not devised as permitted by law and the Florida Constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and lineal descendants, the s...

...DAMOORGIAN, J. Bayview Loan Servicing, LLC ("Lender") appeals an order deeming real property of Thomas F. Giblin ("Decedent") to be homestead property which descended to decedent's surviving spouse, Nivia Giblin, and his descendents. We affirm. See § 732.401(1) Fla....

...The language of article X, section 4 is clear and unambiguous. Here, decedent was a natural person who owned property occupied by his wife and child at the time of his death; thus, the property is homestead. Because decedent died leaving a spouse, the descent of his property is controlled by section 732.401(1), Florida Statutes (2001). As such, the wife is entitled to a life estate in the homestead with a vested remainder to the descendants. § 732.401(1), Fla....

...[1] We note that we have decided only that the property in question was the decedent's homestead, title to which should pass accordingly. The Lender is free to pursue any available cause of action not inconsistent with this determination. Affirmed. GROSS, C.J., and POLEN, J., concur. NOTES [1] § 732.401(1) provides: If not devised as permitted by law and the Florida Constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the survivin...

Committee notes revised. Statutory References § 732,401, Fla. Stat. Descent of homestead. § 732,4015,

...1984 (Second) Revision: Paragraph (a) modified to clarify or re-insert continued filing requirement for inventory. 1988 Revision: Editorial changes in (b) and (d). Committee notes revised. Citation form changes in committee notes. Statutory References F.S. 199.062(4) Annual tax information reports. F.S. 732.401 Descent of homestead. F.S. 732.4015 Devise of homestead....

...d 873 (Fla.1954). Rule History 1984 Revision: New rule. 1988 Revision: Editorial change in (a). Subparagraph (b)(4) amended to conform to constitutional change. Committee notes revised. Citation form change in committee notes. Statutory References F.S. 732.4015 Devise of homestead....

...1984 (Second) Revision: Paragraph (a) modified to clarify or re-insert continued filing requirement for inventory. 1988 Revision: Editorial changes in (b) and (d). Committee notes revised. Citation form changes in committee notes. Statutory References F.S. 199.062(4) Annual tax information reports. F.S. 732.401 Descent of homestead. F.S. 732.4015 Devise of homestead....

...d 873 (Fla.1954). Rule History 1984 Revision: New rule. 1988 Revision: Editorial change in (a). Subparagraph (b)(4) amended to conform to constitutional change. Committee notes revised. Citation form change in committee notes. Statutory References F.S. 732.4015 Devise of homestead....

...Citation form changes in committee notes. 1992 Revision: Editorial changes. Committee notes revised. Citation form changes in committee notes. Constitutional Reference Art. X, § 4, Fla. Const. Statutory References ⅞⅛§ 199.062(4), Fla.Stat. Annual tax information reports. 1¾§4 732.401, Fla.Stat. Descent of homestead. 732.4015, Fla.Stat....

...1992 Revision: Editorial change. Committee notes revised. Citation form changes in committee notes. Constitutional Reference Art. X, § 4, Fla. Const. Statutory References § 731.104, Fla.Stat. Verification of documents. § 732,401, Fla.Stat. Descent of homestead. 732.4015, Fla.Stat....

...property . . . . Specifically . . . any rights, title and/or interest that I may have to claim that the aforementioned property is exempt and/or excluded from my wife, Patricia M. Silver’s estate pursuant to Florida Statute §732.401 or Florida Statute §732.4015. 3  On December 30, 2016, Feldman was appointed Personal Representative of the Estate....

...The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. See also § 732.401(1), Fla....

...nonresiduary beneficiaries, and subsequent subdivisions relettered. Editorial changes in (a), (e), and (g). Committee notes revised. Constitutional Reference [No Change] Statutory References § 199.062(4), Fla. Stat. Annual tax information reports. § 732.401, Fla. Stat. Descent of homestead. § 732.4015, Fla....

...History 1984 Revision — 2007 Revision [No Change] 2010 Revision: Committee notes revised. Constitutional Reference [No Change] Statutory References § 731.104, Fla. Stat. Verification of documents. § 731.201(3133), Fla. Stat. General definitions. § 732.401, Fla. Stat. Descent of homestead. § 732.4015, Fla....

...Rule History 1980 Revision: Eliminated the time limit in requesting a copy of the inventory by an interested person or in furnishing it by the personal representative. 1984 Revision: Extensive changes. Committee notes revised. Statutory References F.S. 193.052(7) Preparation and filing of returns. F.S. 732.401 Descent of homestead. F.S. 732.4015 Devise of homestead....

062(4), Fla. Stat. Annual tax information reports. § 732.401, Fla. Stat. Descent of homestead. § 732.4015,

...An interested person may file a petition to determine the protected homestead status of real property owned by the decedent or owned by the trustee of a trust described in section 733.707(3), Florida Statutes, of which the deceased settlor was treated as the owner of the real property pursuant to section 732.4015, Florida Statutes. (b) Contents....

...real property owned by a trust. Committee notes revised. Constitutional Reference [No Change] Statutory References § 731.104, Fla. Stat. Verification of documents. § 731.201(33), Fla. Stat. General definitions. § 732.401, Fla. Stat. Descent of homestead. - 17 -  § 732.4015, Fla....

have any interest in the bond. . . . ” . Section 732.401(2), Florida Statutes (1977), provides: (2)

...and statutes. Those provisions prohibit the devise of homestead if there is a surviving spouse or minor children, with one exception: If there are no minor children, homestead property may be devised to a surviving spouse. Art. X, § 4, Fla. Const.; § 732.4015, Fla.Stat. (1989). Under section 732.401(1), Florida Statutes (1989), if the homestead is not properly devised according to these provisions, it descends by intestacy, with the spouse taking a life estate and a vested remainder going to the lineal descendants. The decedent’s lineal descendants maintain that because decedent was survived by a spouse, her will, devising the property to a trust, constituted an improper devise, bringing section 732.401(1) into operation, under which the property would pass by intestacy to them since decedent’s spouse had validly waived his rights to the proper *870 ty....

...Subdivision (f) amended to establish procedures for interested persons to obtain information about assets and values listed in the inventory of the elective estate. Committee notes revised. Constitutional Reference Art. X, § 4, Fla. Const. Statutory References § 199.062(4), Fla. Stat. Annual tax information reports. § 732.401, Fla. Stat. Descent of homestead. § 732.4015, Fla....

...of term in section 731.201(29), Florida Statutes. Committee notes revised. Constitutional Reference Art. X, § 4, Fla. Const. Statutory References § 731.104, Fla. Stat. Verification of documents. § 731.201(29), Fla. Stat. General definitions. *877 § 732.401, Fla. Stat. Descent of homestead. § 732.4015, Fla....

...from the total value of the assets all valid claims against the estate paid or payable from the estate. 732.208 Interests in addition to elective share The elective share shall be in addition to exempt property and allowances as provided in part IV [Section 732.401, et seq.]....

...n. The order determining the amount of the elective share is affirmed. AFFIRMED. COWART and HARRIS, JJ., concur. . The amount of the elective share "is computed on all property and interests in property, real or personal ... except homestead (F.S.A. 732.401), exempt property (F.S.A....

...y if the owner is survived by a spouse or minor child reflects this same concern for protection of the family.”) (citation omitted). If an owner contravenes this prohibition, the property descends by way of intestate succession, as provided in section 732.401(1), Florida Statutes (2021)....

...Property in the decedent’s home, however, is not necessarily the property of the decedent. The copersonal representatives overlook the language within the exemption statute which provides that exempt property is merely “a share of the estate of the decedent.” § 732.401(1), Fla....

...Further, Appellants argue that the trial court effectively prevented them from showing prejudice on the outcome of the reformation action when it ruled their homestead interest was irrelevant. To prohibit testimony on this issue, Appellants insist, was an abuse of discretion. We agree. Section 732.401, Florida Statutes (2022), titled “Descent of homestead,” provides that “if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes.” § 732.401(1), Fla....

...vested fee simple remainder interest, and that neither the statutes nor the constitution should frustrate this expressed intent. Furthermore, petitioner argues that neither the Florida Constitution, article X, section 4(c), nor section 732.4015, Florida Statutes, requires that the devise to the surviving spouse must be in fee simple absolute....

...This exception is exclusive and prohibits the testator from devising less than a fee simple interest to his surviving spouse under the circumstances presented herein. Since the devise here was not a permitted one under the Constitution, the property passed in accordance with section 732.401(1), Florida Statutes (1977). In re Finch’s Estate, 401 So....

...tside of probate.” (citations omitted)); § 736.1109(1), Fla. Stat. (2022) (“If a devise of homestead under a trust violates the limitations on the devise of homestead in s. 4(c), Art. X of the State Constitution, title shall pass as provided in s. 732.401 at the moment of death.”). Not even a retroactive action can validly cure a devise violating the homestead laws....

...The Residence Trust conveyed to Valerie a life estate in the apartment with a power to appoint the remainder. Appellants have alleged that this conveyance violates constitutional and statutory homestead law. If they are correct, the Apartment would have passed as provided by section 732.401(1), Florida Statutes (2022)—a life estate to Valerie and a remainder to Appellants as the Decedent’s descendants....

...m an order that granted Stella Pla (Pla), the surviving spouse of Raymond Albert Pla (the decedent), an extension of time to file her election to take an undivided one-half interest in the decedent's homestead property as a tenant in common under section 732.401(2), Florida Statutes (2017), and deemed Pla's homestead election timely....

...We reverse because the trial court erred as a matter of law in granting the extension and deeming the election timely. Our review is de novo. See Hill v. Davis, 70 So. 3d 572, 575 (Fla. 2011) ("Because this issue is one of statutory interpretation, review is de novo."). Pursuant to section 732.401, a surviving spouse takes a life estate in the homestead unless he or she elects to take an undivided one-half interest in the homestead as a tenant in common. § 732.401(1), (2). The surviving spouse must make such an election within six months of the decedent's death, § 732.401(2)(b), and that time limit "may not be extended except . . . [upon a] petition by an attorney in fact or by a guardian of the property of the surviving spouse for approval to make the election," § 732.401(2)(b), (c). The petition itself, however, must be timely filed within those six months. § 732.401(2)(c). Pla neither made the election nor filed such a petition within the six-month period....

...Instead, approximately seven-and-a-half months after the decedent's death, she moved pursuant to Florida Probate Rule 5.042(b)(2) for an extension of time to make the election, claiming excusable neglect. Samad argued, among other things, that rule 5.042(b) is inapplicable to extend the time prescribed in section 732.401(2)....

...The trial court, however, agreed with Pla that excusable neglect could warrant an extension, and it determined that Pla had made the requisite showing. Samad's argument, which he reiterates on appeal, is well taken; rule 5.042(b) is inapposite to the application of section 732.401(2)....

...4th DCA 2001), involved statutorily required notices that were untimely but for which extensions were specifically authorized by statute; rule 5.042(b) simply did not come into play and was not even mentioned. Because Pla failed to satisfy the requirements set forth in section 732.401(2), the trial court erred as a matter of law in granting her an extension of time to file her notice of election under that section and in deeming her election timely. Reversed. CASANUEVA and BADALAMENTI, JJ., Concu...

...The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. 7 See also § 732.401(1), Fla....

inures to lineal descendants by virtue of section 732.401(1), Florida Statutes ). Nevertheless, Kenneth

inures to lineal descendants by virtue of section 732.401(1), Florida Statutes ). Nevertheless, Kenneth

...Here the trial court construed the constitution to prohibit a devise of a life estate to the spouse with the remainder to a lineal descendant because the order appealed sets aside that devise and requires the homestead to pass by intestacy laws as required in Section 732.401(1), Florida Statutes (Supp.1976)....

...values listed in the inventory of the elective estate. Committee notes revised. 2003 Revision: Committee notes revised. Constitutional Reference Art. X, § 4, Fla. Const. Statutory References § 199.062(4), Fla. Stat. Annual tax information reports. § 732.401, Fla. Stat. Descent of homestead. § 732.4015, Fla....

...tatutes. Committee notes revised. 2003 Revision: Committee notes revised. Constitutional Reference Art. X, § 4, Fla. Const. Statutory References § 731.104, Fla. Stat. Verification of documents. *1130 § 731.201(29), Fla. Stat. General definitions. § 732.401, Fla. Stat. Descent of homestead. § 732.4015, Fla....

...the Bankruptcy Act. 30. At the time of his father’s death in 1962, the Bankrupt, as the only son of JAMES R. CORYELL, JR., and ROSE M. CORYELL, acquired a vested remainder in the subject property pursuant to former § 731.27, Fla.Stat. (1961), now § 732.401, Fla.Stat....

...[No Change] Statutory References § 732.2035, Fla. Stat. Property entering into elective estate. § 732.2045, Fla. Stat. Exclusions and overlapping application. § 732.2055, Fla. Stat. Valuation of the elective estate. § 732.401, Fla. Stat. Descent of homestead. - 11 -  § 732.4015, Fla....

...An interested person may file a petition to determine the protected homestead status of real property owned by the decedent or owned by the trustee of a trust described in section 733.707(3), Florida Statutes, of which the deceased settlor was treated as the owner of the real property pursuant tounder section 732.4015, Florida Statutes. (b) Contents....

...General definitions. - 14 -  § 731.301, Fla. Stat. Notice. § 731.302, Fla. Stat. Waiver and consent by interested person. § 732.103, Fla. Stat. Share of other heirs. § 732.104, Fla. Stat. Inheritance per stirpes. § 732.401, Fla. Stat. Descent of homestead. § 732.4015, Fla....

...When the appellant’s husband died, she discovered that their marital home was ti- *1212 tied in his name alone and not in their joint names as she had believed. Instead of holding title to the property by right of survivorship, she found that she had only a life, estate pursuant to section 732.401, Florida Statutes (1.991), and that the remainder interest in the property was vested in the appellees, who are her husband’s children from a prior marriage....

...First they say that the appellant is required to accept the life estate afforded her by Florida law in this situation, and that for her to gain more by asserting a constructive trust would circumvent the public policy of the State of Florida as reflected in section 732.401 and article X, section 4(c), of the Florida Constitution....

...The decedent, Marion Bentley Wall, was the grandmother and guardian of Terry Bentley and had custody of her grandson at the time of her death. Marion Wall specifically provided for Terry in her will. Through a guardian ad litem, Terry filed the petition to claim the benefits of the homestead law. Fla. Stat. § 732.401 , § 732.4015; Fla....

...married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law. Art. X, § 4(c), Fla. Const. See also § 732.401(1), Fla....

...; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes.”); § 732.4015(1), Fla....

...McKean v. Warburton, 919 So. 2d 341, 346 (Fla. 2005). If the homestead is not devised, as in this case, it descends the same way as other intestate property except in cases in which the decedent is survived by a spouse and at least one descendant. § 732.401(1), Fla....

...And, because the Decedent died intestate and was survived by a spouse and lineal descendants, the probate court properly determined that the Decedent's protected homestead interest descended to the Second Wife as a life estate with a vested remainder in Nicholas and Thomas. See § 732.401(1)....

...d therefore was violative of Article X, section 4 of the Florida Constitution, the homestead provision. Accordingly, Mrs. Hen-drickson sought to have the devise set aside and the property pass under Article X, section 4(c), Florida Constitution, and section 732.401(1), Florida Statutes (1985)....

...The homestead property was not included in the probate estate due to Florida’s homestead law, Rosemarie having survived Hubert. Rosemarie received a life estate in the homestead and the remainder vested in the appellees, Hubert’s lineal descendants, pursuant to section 732.401(1), Florida Statutes....

...ees as joint owners of the property, for a proportionate share of the purchase price of the life estate. The complaint sought a declaration that section 732.-401(1), Florida Statutes, was “inoperable” as to the facts present in the instant case. Section 732.401(1), Florida Statutes (1991), provides: 732.401 Descent of homestead.— (1) If not devised as permitted by law and the Florida Constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and lineal descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the lineal descendants in being at the time of the decedent’s death. Appellants argue that section 732.401(1) is unconstitutional as applied in this case, because appellants were disinherited in favor of Hubert Calhoun’s adult lineal descendants, even though these adult lineal descendants do not fall within the class of people the constitutional homestead exemption was intended to benefit (i.e., the spouse and minor children). Appellants argue that while section 732.401(1) properly protects the surviving spouse, the statute *600 improperly vests a remainder interest in lineal descendants....

...ate interest in vesting the remainder in adult lineal descendants. If Hubert Calhoun did indeed intend to devise an interest in the subject property to his deceased wife’s children as well as his lineal descendants, 1 that intent was frustrated by section 732.401(1)....

...In the instant case, the underlying purpose of the constitutional provision protecting homestead property from a decedent's creditors is not served by denying Hubert’s adult stepchildren a share in the remainder interest in the property. We decline to hold section 732.401(1) unconstitutional, recognizing that the legislature is presumed to be aware of the plain meaning of the term “lineal descendants.” We will not substitute our judgment for that of the legislature, elected by the people to enact statutes. We do, however, certify the following question as one of great public importance: WHETHER SECTION 732.401(1), FLORIDA STATUTES (1991), WHICH VESTS A REMAINDER INTEREST IN HOMESTEAD PROPERTY IN LINEAL DESCENDANTS, IS UNCONSTITUTIONAL WHEN APPLIED TO DEFEAT A TESTATOR'S INTENT TO DEVISE HOMESTEAD PROPERTY EQUALLY TO ADULT STEPCHILDREN AS WELL AS ADULT LINEAL DESCENDANTS? AFFIRMED....

This amendment was after Mr. Newman’s death. . § 732.401, Fla.Stat. (1981), formerly § 731.27, Fla.Stat