Part  III.       RESTRICTIONS ON DEVISE

Article X, Section 4(c) of the Florida Constitution provides that an owner of homestead real property may not devise homestead property if he or she is survived by a minor child.  If the owner is not survived by a minor child, but is married, the owner may only devise the homestead to the surviving spouse. As with other aspects of homestead law, the facts and circumstances at a particular moment in time must be examined closely.

A.         Real Property Owned at Death

1.               Protected Homestead

The Term “Protected Homestead” Applies Only Where the Owner has died.  Section 732.201 defines terms used in specific Florida statutes:

Section 409.9101 (the Medicaid Estate Recovery Act);

Chapters 731 through 735 (The Florida Probate Code);

Chapter 736 (The Florida Trust Code);

Chapter 738 (The Florida Uniform Principal and Income Act);

Chapter 739 (The Florida Uniform Disclaimer of Property Interests Act); and

Chapter 744 (The Florida Guardianship Law).

The term “protected homestead” is used only in situations where:

• The real property was the decedent’s homestead at the time of his or her death as set forth in section 4, Article X, Fla. Const.; and
• The inurement of the protection against creditor claims during the owner’s lifetime as set forth in paragraph (a) of section 4, Article X, inured to the benefit of the decedent’s surviving spouse or heirs as set forth in paragraph (b) of section 4, Article X.

The term “protected homestead” is found in the following statutory sections:

Section 409.9101 – Recovery of payments made on behalf of Medicaid-eligible persons (Medicaid Estate Recovery Act);

Section 731.201 – General definitions (The Florida Probate Code);

Section 732.2045 – Exclusions and overlapping application;

Section 732.402 – Exempt property;

Section 732.403 – Family allowance;

Section 733.607 – Possession of estate;

Section 733.608 – General power of personal representative;

Section 733.617 – Compensation of personal representative;

Section 733.6171 – Compensation of attorney for the personal representative;

Section 733.817 – Apportionment of estate taxes.

The following statutes specifically reference Article X, section 4 for situations where the owner has died, but the term “homestead” is not qualified by the word “protected.”

Section 732.227 – Homestead Defined (Florida Uniform Disposition of Community Property Rights at Death Act.)

Section 732.401 – Descent of Homestead

Section 732.401 – Devise of Homestead

Section 739.203 – Disclaimer of rights of property held as tenancy by the entirety.

            2.         JTWRS and TBE Ownership

Prior to its amendment in 2010, section 732.401(2) provided that the restrictions on the devise of homestead were not applicable to homestead owned by the decedent and surviving spouse as tenants by the entireties.  The subsequent changes were as follows:

732.401 Descent of homestead. ----

(2)(5) This section does Subsection (1) shall not apply to property that the decedent and the surviving spouse owned in tenancy by the entireties or joint tenancy with rights of survivorship as tenants by the entirety.

Case law provides that homestead owned by the decedent and another individual in joint tenancy with rights of survivorship is not subject to the restrictions on devise.[i]  The addition of "joint tenancy with rights of survivorship" to section 732.401 was intended to prevent the argument that its omission reflects the legislature's intent to treat such interests differently.

3.         Leasehold Cooperatives

Although most real estate attorneys view leasehold cooperative ownership as the ownership of real property that would qualify for all aspects of homestead protection, the Florida Supreme Court has held that an interest in a leasehold cooperative is not subject to the restrictions on devise.[ii] The Supreme Court dismissed Geraci v. Sunstar after accepting jurisdiction based upon a conflict between Geraci v. Sunstar and Wartels.

4.         Ladybird Deeds

Because a Ladybird deed includes a vested, but revocable remainder interest, it should be treated as a testamentary instrument and subject to the restrictions on devise. This applies even if the spouse joins in the deed. There appear to be no cases on point, but the treatment of a devise through a revocable trust would be analogous.

5.         Trusts

The statutory counterpart of Article X, section 4, addresses the ownership of homestead through a trust.

732.4015 Devise of homestead.—

(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 minor children, except that the homestead may be devised to the owner’s spouse if there is no minor child or minor children.

(2) For the purposes of subsection (1), the term:

(a) “Owner” includes the grantor of a trust described in s. 733.707(3) that is evidenced by a written instrument which is in existence at the time of the grantor’s death as if the interest held in trust was owned by the grantor.

(b) “Devise” includes a disposition by trust of that portion of the trust estate which, if titled in the name of the grantor of the trust, would be the grantor’s homestead.

(3) If an interest in homestead has been devised to the surviving spouse as authorized by law and the constitution, and the surviving spouse’s interest is disclaimed, the disclaimed interest shall pass in accordance with chapter 739.

a.         Homestead and Joint Trusts

In some situations, The Fund Title Notes require that the surviving spouse confirm the conveyance to the trust, whether it be a joint trust or a separate trust. Failure to do so can lead to a requirement that the estate of the first spouse to die be probated to confirm the conveyance to the trust and the devise of the homestead upon the death of the first spouse to die.[iii]

b.         QTIP and Credit Shelter Trusts

If there are no minor children, the interest devised to the spouse must not be less than a fee simple interest.[iv] The following planning techniques give the surviving spouse less than a fee simple interest and do not constitute a valid devise:

• QTIP Trusts;
• Credit Shelter Trusts.

If ownership passes as the result of joint ownership or an irrevocable trust, the transfer is not a devise.

c.         § 732.4017 – Irrevocable Homestead Trusts

i.          No Devise Through an Irrevocable Trust

A settlor survived by a minor child cannot devise homestead. An invalid devise of homestead results in a life estate for the surviving spouse and a vested remainder interest in the settlor’s lineal descendants, including those who are not minors.[v] For individual owners of homestead real property with minor children, § 732.4017 gives statutory confirmation of the principal that a completed conveyance to an irrevocable trust is not subject to the restrictions on devise and descent. Instead of a revocable interest, the settlor of the trust retains a reversionary interest that takes effect when the settlor’s youngest child reaches the age of 18.  This trust requires careful planning, including the selection of an independent trustee.

ii.         The Stone Case

In a pending appeal, the Forth District Court of Appeals requested an amicus brief from the Florida Bar Real Property, Probate and Trust Law Section.[vi]  The case initially appears to be governed by the principals codified in §732.4017. The decedent transferred a one-half interest in his homestead to a qualified personal residence trust. Because the trust was irrevocable, an initial reading of § 732.4017 would suggest that (1) the decedent did not own the real property at the time of his death and (2) the transfer upon death was not a devise.  The decedent died before the QPRT term and was survived by a spouse.  The trust provided that the residence would become part of the decedent’s estate, passing according to his will.  The RPPTL Section has filed an amicus brief and the Fourth District Court of Appeals is now determining whether there was a devise, subject to the homestead restrictions, or a transfer contemplated by § 732.4017.

B.     Survived by a Spouse or Minor Child

1.         Spouse

a.         Common Law Marriage

The Florida Statutes provide that no “common-law marriage entered into after January 7, 1968 shall be valid.”[vii] However, a common-law marriage validly entered into in another state or nation will be recognized in Florida.[viii] In Sterile v. Trelles, the Second District Court remanded the case back to the trial court for a hearing on the establishment of a common-law marriage in Haiti, directing the trial court to enter an order with specific findings of fact. Another case involved a common-law marriage in Columbia.[ix]  Both cases involved a claim to proceeds in a wrongful death action that depended upon the establishment of a marital relationship with the decedent.

b.         Divorce

For some planning documents, the filing of a dissolution of marriage action impacts the document.  For others there is no change until the final judgment of dissolution of marriage is entered.

i.          Effect of Divorce on Wills and Trusts

The marriage is considered to be intact until the moment the Final Judgment of Dissolution of Marriage is entered. [x] Upon divorce, provisions for the former spouse in the other spouse’s will and trust are treated as if the former spouse predeceased the settlor, testator or testatrix.[xi] After the divorce is final, however, a former spouse can execute new documents to effectively provide for the former spouse.

ii.         Insurance and Retirement Account Beneficiaries

The Probate Code was recently amended to provide that the designation of a spouse as a beneficiary under life insurance policy or retirement plan becomes ineffective upon entry of the final judgment.[xii]

c.         Elective Share Proceedings

The elective share statutes contain no provisions relating to the quality of the marriage, or the filing of dissolution of marriage proceedings. If the couple is married at the moment of death, elective share rights can be exercised.

d.         Annulment

Once an annulment has been entered by the court, the marriage is treated as if it never existed. It has the same effect as a dissolution of marriage, except that the grounds for the annulment existed as of the date of the marriage.

[i] Ostyn v. Olympic, 455 So. 2d 1137 (Fla. 2d DCA 1984); Marger v. De Rosa, 57 So. 3d 86 (Fla. App. 2 Dist.).

[ii] In re Wartels’ Estate, 357 So. 2d 708 (Fla. 1978).

[iii] The Fund Title Notes, TN 31.06.10.

[iv] In re Estate of Finch, 401 So. 2d 1308 (Fla. 1981).

[v] Art.  X, § 4, Fla. Const.

[vi] Stone v. Stone, 128 So. 3d 239 (Fla. 4^th DCA 2013).

[vii] § 741.211, Fla. Stat.

[viii] Sterile v. Trelles (In re Estate of Sterile), 902 So.2d 915 (Fla. 2^nd D.C.A. 2005).

[ix] American Airlines, Inc. v. Mejia, 766 So. 2d 305 (Fla. 4^th D.C.A. 2000).

[x] Marlowe v. Brown, 944 So.2d 1036 (Fla. 4^th D.C.A. 2006).

[xi] § 732.507(2), Fla. Stat.;  736.1105, Fla. Stat.

[xii] § 732.703, Fla. Stat.

e.         Domestic Partnerships and Same Sex Marriages

i.          Current Florida Law

In 1997, the Florida Legislature passed the Defense of Marriage Act. The purpose of the Act was to prevent the recognition of domestic partnerships and civil unions entered into in other states. [xii]

741.212 Marriages between persons of the same sex.—

(1) Marriages between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, or relationships between persons of the same sex which are treated as marriages in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, are not recognized for any purpose in this state.

(2) The state, its agencies, and its political subdivisions may not give effect to any public act, record, or judicial proceeding of any state, territory, possession, or tribe of the United States or of any other jurisdiction, either domestic or foreign, or any other place or location respecting either a marriage or relationship not recognized under subsection (1) or a claim arising from such a marriage or relationship.

(3) For purposes of interpreting any state statute or rule, the term “marriage” means only a legal union between one man and one woman as husband and wife, and the term “spouse” applies only to a member of such a union.

ii.         Recent Supreme Court Decisions

The recent Windsor and Peterson decisions have held the federal Defense of Marriage Act unconstitutional.[xii] The decision in Obergefell v. Hodges[xii] went on to hold that similar state laws are unconstitutional. Federal courts have examined with increased scrutiny the concept of “marriage.”  Currently, state laws can vary, with different requirements for a valid marriage, depending upon:

• The age of the parties;
• The existence of a marriage license;
• The degree of kinship between the parties; and
• The sex of the parties.

This trend was analyzed in a recent article by Michelle Ward.[xii] In her article, Michelle examined three recent decisions that could reflect a shift in the concept of what constitutes a valid marriage.

            In United States v. Windsor,[xii] the U.S. Supreme Court struck down the federal Defense of Marriage Act. The facts of the case were as follows:

• Edith Windsor and Thea Spyer were New York residents.
• In 1993, they registered as domestic partners under New York Law.
• In 2007, they were married in Canada.
• In 2009, Thea died, leaving her entire estate to Edith.
• Edith filed a federal estate tax return, paying all taxes due.
• Because Edith did not qualify as a “surviving spouse” under DOMA, she sued for a refund, claiming entitlement to the marital deduction.

Applying the equal protection and due process principals of the Fifth Amendment, the Court held:

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.[xii]

The court noted the authority of each individual state to enact laws concerning marriage.  The court stopped short of ruling that any state law failing to recognize same-sex marriages violated the U.S. Constitution.  The court instead held that the federal law failed to recognize a marriage that was valid under the applicable state law. The court noted that federal laws include over 1,000 instances where the definition of marriage is crucial.

iii.       Ohio DOMA Law

A decision in Ohio applied Windsor to an Ohio law which was the state-level equivalent of the federal DOMA law struck down in Windsor.  In Obergefell v. Kasich,[xii] an Ohio District Court examined whether James Obergefell was the surviving spouse of John Arthur. The facts were as follows:

• James and John had lived together for more than 20 years.
• They were Ohio residents.
• John was diagnosed with ALS.
• James and John travelled to Ohio and were married under Maryland law.
• After the couple returned to Ohio, John died.
• Ohio law prohibited the recognition of same-sex marriages.

The Ohio court noted that Ohio law recognized marriages valid under the laws of other states, even if those marriages would contrary to the laws of Ohio.  The court cited differences in state laws relating to age and degree of kinship, noting that Ohio did not refuse to recognize married couples who were too young to marry, or too closely related to marry under Ohio law. Concluding that the State of Ohio could not discriminate against same-sex couples without violating their rights to equal protection under the law, the court ordered that Mr. Arthur’s death certificate reflect that he was married and that Mr. Obergefell was his surviving spouse.

iv.        Windsor and ERISA

In O’Connor v. Tobits[xii], a federal district court examined the application of the federal Employee Retirement Income Security Act of 1974, which was amended by the Retirement Equity Act of 1984.  ERISA provides that a surviving “spouse” is entitled to the proceeds of retirement plans covered under ERISA upon the death of the spouse who owned the retirement account, unless the surviving spouse waives this important right. The key facts of the case were:

• In 2006, Jean and Sarah were legally married in Canada.
• Sarah and Jean resided in Illinois.
• Illinois law recognized the Canadian marriage as valid.
• Sarah designated her parents as beneficiaries on her profit-sharing plan.
• Jean did not waiver her rights to the plan.
• Sarah died in 2010.

The Pennsylvania district court applied the decision in Windsor and held that Jean was Sarah’s surviving spouse for purposes of ERISA. 

v.         Other Applications for Windsor

Practitioners should consider various other rights under federal law for surviving spouses:

• Social Security Survivor’s Benefits;
• Federal Estate, Income, and Gift tax deductions;
• Veteran’s benefits for surviving spouses.

Because the Windsor court was very careful to say that DOMA was not valid when applied to the resident of a state that recognized same-sex marriages, its effect upon states like Florida is unclear. The court seems to say the federal law violated equal protection and undue process principals where the controlling state law recognized same-sex marriages, but it did not go as far as to strike down state laws refusing to recognize same sex marriage.  Florida’s constitution does include similar due process and equal protection clauses, but previous attacks on Florida’s version of DOMA have failed.

1. Obergefell v. Hodges

The decision in Obergefell v. Hodges extended the rationale in Windsor to state defense of marriage acts, including Florida's statute.

f.          Fraudulent or Void Marriages

Section 732.805 was amended in 2010 to address marriages that were entered into for fraudulent reasons. It was significant in that it permitted, for the first time under Florida law, a challenge to a marriage after the death of one of the spouses. The contestant must establish, by a preponderance of the evidence that the marriage was procured by fraud, duress, or undue influence.

732.805 Spousal rights procured by fraud, duress, or undue influence.—

(1) A surviving spouse who is found to have procured a marriage to the decedent by fraud, duress, or undue influence is not entitled to any of the following rights or benefits that inure solely by virtue of the marriage or the person’s status as surviving spouse of the decedent unless the decedent and the surviving spouse voluntarily cohabited as husband and wife with full knowledge of the facts constituting the fraud, duress, or undue influence or both spouses otherwise subsequently ratified the marriage:

(a) Any rights or benefits under the Florida Probate Code, including, but not limited to, entitlement to elective share or family allowance; preference in appointment as personal representative; inheritance by intestacy, homestead, or exempt property; or inheritance as a pretermitted spouse.

(b) Any rights or benefits under a bond, life insurance policy, or other contractual arrangement if the decedent is the principal obligee or the person upon whose life the policy is issued, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the bond, life insurance policy, or other contractual arrangement.

(c) Any rights or benefits under a will, trust, or power of appointment, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the will, trust, or power of appointment.

(d) Any immunity from the presumption of undue influence that a surviving spouse may have under state law.

(2) Any of the rights or benefits listed in paragraphs (1)(a)-(c) which would have passed solely by virtue of the marriage to a surviving spouse who is found to have procured the marriage by fraud, duress, or undue influence shall pass as if the spouse had predeceased the decedent.

(3) A challenge to a surviving spouse’s rights under this section may be maintained as a defense, objection, or cause of action by any interested person after the death of the decedent in any proceeding in which the fact of marriage may be directly or indirectly material.

(4) The contestant has the burden of establishing, by a preponderance of the evidence, that the marriage was procured by fraud, duress, or undue influence. If ratification of the marriage is raised as a defense, the surviving spouse has the burden of establishing, by a preponderance of the evidence, the subsequent ratification by both spouses.

(5) In all actions brought under this section, the court shall award taxable costs as in chancery actions, including attorney’s fees. When awarding taxable costs and attorney’s fees, the court may direct payment from a party’s interest, if any, in the estate, or enter a judgment that may be satisfied from other property of the party, or both.

(6) An insurance company, financial institution, or other obligor making payment according to the terms of its policy or obligation is not liable by reason of this section unless, before payment, it received written notice of a claim pursuant to this section.

(a) The notice required by this subsection must be in writing and must be accomplished in a manner reasonably suitable under the circumstances and likely to result in receipt of the notice. Permissible methods of notice include first-class mail, personal delivery, delivery to the person’s last known place of residence or place of business, or a properly directed facsimile or other electronic message.

(b) To be effective, notice to a financial institution or insurance company must contain the name, address, and the taxpayer identification number, or the account or policy number, of the principal obligee or person whose life is insured and shall be directed to an officer or a manager of the financial institution or insurance company in this state. If the financial institution or insurance company has no offices in this state, the notice shall be directed to the principal office of the financial institution or insurance company.

(c) Notice shall be effective when given, except that notice to a financial institution or insurance company is not effective until 5 business days after being given.

(7) The rights and remedies granted in this section are in addition to any other rights or remedies a person may have at law or equity.

(8) Unless sooner barred by adjudication, estoppel, or a provision of the Florida Probate Code or Florida Probate Rules, an interested person is barred from bringing an action under this section unless the action is commenced within 4 years after the decedent’s date of death. A cause of action under this section accrues on the decedent’s date of death.

g.         The “Slayer” Statute

The slayer statute prohibits a killer from taking or inheriting the decedent’s property pursuant to:

• The decedent’s will;
• The Florida Probate Code;
• Survivorship rights incident to joint tenancy;
• Survivorship rights incident to tenancy by the entireties;
• Beneficiary designations on bonds, insurance policies or other contractual arrangements;
• Any other acquisition of property rights by the killer, including a life estate in homestead property.

The statute provides protection for third parties, such as bona fide purchasers, banks and insurance companies. A person who would inherit as a result of the killer’s conviction could notify such third parties of their claim. In the absence of a  murder conviction, the statute applies if a court finds, by the greater weight of the evidence, that the killing was unlawful and intentional.

The slayer statute covers “all rights” under the Probate Code, which would clearly include homestead rights, the elective share, family allowance, exempt property, an intestate share, and pretermitted spouse rights.[xii] The policy behind the statute would clearly bar a claim to by the surviving spouse who committed an unlawful killing. The rights set forth in § 732.401 apply to a surviving spouse. Section 732.802 provides that the killer is deemed to have predeceased the victim. It follows that one who is deemed to have predeceased the decedent cannot be a surviving spouse for purposes of § 732.401.  The courts have held that the killer should not receive any interest in the estate of the decedent.[xii] Although protected homestead is not part of the decedent’s “estate”[xii], the descent of homestead is provided for within the Florida Probate Code. As a result, invalidly devised homestead should be subject to §732.802, as well as validly devised homestead.

(2) 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 coownership with survivorship incidents.

(3) A named beneficiary of a bond, life insurance policy, or other contractual arrangement who unlawfully and intentionally kills the principal obligee or the person upon whose life the policy is issued is not entitled to any benefit under the bond, policy, or other contractual arrangement; and it becomes payable as though the killer had predeceased the decedent.

(4) Any other acquisition of property or interest by the killer, including a life estate in homestead property or a spouse’s right to elect a one-half interest as tenant in common, shall be treated in accordance with the principles of this section.

(5) A final judgment of conviction of murder in any degree is conclusive for purposes of this section. In the absence of a conviction of murder in any degree, the court may determine by the greater weight of the evidence whether the killing was unlawful and intentional for purposes of this section.

(6) This section does not affect the rights of any person who, before rights under this section have been adjudicated, purchases from the killer for value and without notice property which the killer would have acquired except for this section, but the killer is liable for the amount of the proceeds or the value of the property. Any insurance company, bank, or other obligor making payment according to the terms of its policy or obligation is not liable by reason of this section unless prior to payment it has received at its home office or principal address written notice of a claim under this section.

741.212 Marriages between persons of the same sex.—
(1) Marriages between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, or relationships between persons of the same sex which are treated as marriages in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, are not recognized for any purpose in this state.
(2) The state, its agencies, and its political subdivisions may not give effect to any public act, record, or judicial proceeding of any state, territory, possession, or tribe of the United States or of any other jurisdiction, either domestic or foreign, or any other place or location respecting either a marriage or relationship not recognized under subsection (1) or a claim arising from such a marriage or relationship.
(3) For purposes of interpreting any state statute or rule, the term “marriage” means only a legal union between one man and one woman as husband and wife, and the term “spouse” applies only to a member of such a union.

ii. Recent Supreme Court Decisions
The recent Windsor and Peterson decisions have held the federal Defense of Marriage Act unconstitutional. The decision in Obergefell v. Hodges went on to hold that similar state laws are unconstitutional. Federal courts have examined with increased scrutiny the concept of “marriage.” Currently, state laws can vary, with different requirements for a valid marriage, depending upon:
• The age of the parties;
• The existence of a marriage license;
• The degree of kinship between the parties; and
• The sex of the parties.
This trend was analyzed in a recent article by Michelle Ward. In her article, Michelle examined three recent decisions that could reflect a shift in the concept of what constitutes a valid marriage.
In United States v. Windsor, the U.S. Supreme Court struck down the federal Defense of Marriage Act. The facts of the case were as follows:
• Edith Windsor and Thea Spyer were New York residents.
• In 1993, they registered as domestic partners under New York Law.
• In 2007, they were married in Canada.
• In 2009, Thea died, leaving her entire estate to Edith.
• Edith filed a federal estate tax return, paying all taxes due.
• Because Edith did not qualify as a “surviving spouse” under DOMA, she sued for a refund, claiming entitlement to the marital deduction.
Applying the equal protection and due process principals of the Fifth Amendment, the Court held:
The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.
The court noted the authority of each individual state to enact laws concerning marriage. The court stopped short of ruling that any state law failing to recognize same-sex marriages violated the U.S. Constitution. The court instead held that the federal law failed to recognize a marriage that was valid under the applicable state law. The court noted that federal laws include over 1,000 instances where the definition of marriage is crucial.
iii. Ohio DOMA Law
A decision in Ohio applied Windsor to an Ohio law which was the state-level equivalent of the federal DOMA law struck down in Windsor. In Obergefell v. Kasich, an Ohio District Court examined whether James Obergefell was the surviving spouse of John Arthur. The facts were as follows:
• James and John had lived together for more than 20 years.
• They were Ohio residents.
• John was diagnosed with ALS.
• James and John travelled to Ohio and were married under Maryland law.
• After the couple returned to Ohio, John died.
• Ohio law prohibited the recognition of same-sex marriages.
The Ohio court noted that Ohio law recognized marriages valid under the laws of other states, even if those marriages would contrary to the laws of Ohio. The court cited differences in state laws relating to age and degree of kinship, noting that Ohio did not refuse to recognize married couples who were too young to marry, or too closely related to marry under Ohio law. Concluding that the State of Ohio could not discriminate against same-sex couples without violating their rights to equal protection under the law, the court ordered that Mr. Arthur’s death certificate reflect that he was married and that Mr. Obergefell was his surviving spouse.
iv. Windsor and ERISA
In O’Connor v. Tobits , a federal district court examined the application of the federal Employee Retirement Income Security Act of 1974, which was amended by the Retirement Equity Act of 1984. ERISA provides that a surviving “spouse” is entitled to the proceeds of retirement plans covered under ERISA upon the death of the spouse who owned the retirement account, unless the surviving spouse waives this important right. The key facts of the case were:
• In 2006, Jean and Sarah were legally married in Canada.
• Sarah and Jean resided in Illinois.
• Illinois law recognized the Canadian marriage as valid.
• Sarah designated her parents as beneficiaries on her profit-sharing plan.
• Jean did not waiver her rights to the plan.
• Sarah died in 2010.
The Pennsylvania district court applied the decision in Windsor and held that Jean was Sarah’s surviving spouse for purposes of ERISA.
v. Other Applications for Windsor
Practitioners should consider various other rights under federal law for surviving spouses:
• Social Security Survivor’s Benefits;
• Federal Estate, Income, and Gift tax deductions;
• Veteran’s benefits for surviving spouses.
Because the Windsor court was very careful to say that DOMA was not valid when applied to the resident of a state that recognized same-sex marriages, its effect upon states like Florida is unclear. The court seems to say the federal law violated equal protection and undue process principals where the controlling state law recognized same-sex marriages, but it did not go as far as to strike down state laws refusing to recognize same sex marriage. Florida’s constitution does include similar due process and equal protection clauses, but previous attacks on Florida’s version of DOMA have failed.
vi. Obergefell v. Hodges
The decision in Obergefell v. Hodges extended the rationale in Windsor to state defense of marriage acts, including Florida's statute.
f. Fraudulent or Void Marriages
Section 732.805 was amended in 2010 to address marriages that were entered into for fraudulent reasons. It was significant in that it permitted, for the first time under Florida law, a challenge to a marriage after the death of one of the spouses. The contestant must establish, by a preponderance of the evidence that the marriage was procured by fraud, duress, or undue influence.
732.805 Spousal rights procured by fraud, duress, or undue influence.—
(1) A surviving spouse who is found to have procured a marriage to the decedent by fraud, duress, or undue influence is not entitled to any of the following rights or benefits that inure solely by virtue of the marriage or the person’s status as surviving spouse of the decedent unless the decedent and the surviving spouse voluntarily cohabited as husband and wife with full knowledge of the facts constituting the fraud, duress, or undue influence or both spouses otherwise subsequently ratified the marriage:
(a) Any rights or benefits under the Florida Probate Code, including, but not limited to, entitlement to elective share or family allowance; preference in appointment as personal representative; inheritance by intestacy, homestead, or exempt property; or inheritance as a pretermitted spouse.
(b) Any rights or benefits under a bond, life insurance policy, or other contractual arrangement if the decedent is the principal obligee or the person upon whose life the policy is issued, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the bond, life insurance policy, or other contractual arrangement.
(c) Any rights or benefits under a will, trust, or power of appointment, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the will, trust, or power of appointment.
(d) Any immunity from the presumption of undue influence that a surviving spouse may have under state law.
(2) Any of the rights or benefits listed in paragraphs (1)(a)-(c) which would have passed solely by virtue of the marriage to a surviving spouse who is found to have procured the marriage by fraud, duress, or undue influence shall pass as if the spouse had predeceased the decedent.
(3) A challenge to a surviving spouse’s rights under this section may be maintained as a defense, objection, or cause of action by any interested person after the death of the decedent in any proceeding in which the fact of marriage may be directly or indirectly material.
(4) The contestant has the burden of establishing, by a preponderance of the evidence, that the marriage was procured by fraud, duress, or undue influence. If ratification of the marriage is raised as a defense, the surviving spouse has the burden of establishing, by a preponderance of the evidence, the subsequent ratification by both spouses.
(5) In all actions brought under this section, the court shall award taxable costs as in chancery actions, including attorney’s fees. When awarding taxable costs and attorney’s fees, the court may direct payment from a party’s interest, if any, in the estate, or enter a judgment that may be satisfied from other property of the party, or both.
(6) An insurance company, financial institution, or other obligor making payment according to the terms of its policy or obligation is not liable by reason of this section unless, before payment, it received written notice of a claim pursuant to this section.
(a) The notice required by this subsection must be in writing and must be accomplished in a manner reasonably suitable under the circumstances and likely to result in receipt of the notice. Permissible methods of notice include first-class mail, personal delivery, delivery to the person’s last known place of residence or place of business, or a properly directed facsimile or other electronic message.
(b) To be effective, notice to a financial institution or insurance company must contain the name, address, and the taxpayer identification number, or the account or policy number, of the principal obligee or person whose life is insured and shall be directed to an officer or a manager of the financial institution or insurance company in this state. If the financial institution or insurance company has no offices in this state, the notice shall be directed to the principal office of the financial institution or insurance company.
(c) Notice shall be effective when given, except that notice to a financial institution or insurance company is not effective until 5 business days after being given.
(7) The rights and remedies granted in this section are in addition to any other rights or remedies a person may have at law or equity.
(8) Unless sooner barred by adjudication, estoppel, or a provision of the Florida Probate Code or Florida Probate Rules, an interested person is barred from bringing an action under this section unless the action is commenced within 4 years after the decedent’s date of death. A cause of action under this section accrues on the decedent’s date of death.
g. The “Slayer” Statute
The slayer statute prohibits a killer from taking or inheriting the decedent’s property pursuant to:
• The decedent’s will;
• The Florida Probate Code;
• Survivorship rights incident to joint tenancy;
• Survivorship rights incident to tenancy by the entireties;
• Beneficiary designations on bonds, insurance policies or other contractual arrangements;
• Any other acquisition of property rights by the killer, including a life estate in homestead property.
The statute provides protection for third parties, such as bona fide purchasers, banks and insurance companies. A person who would inherit as a result of the killer’s conviction could notify such third parties of their claim. In the absence of a murder conviction, the statute applies if a court finds, by the greater weight of the evidence, that the killing was unlawful and intentional.
The slayer statute covers “all rights” under the Probate Code, which would clearly include homestead rights, the elective share, family allowance, exempt property, an intestate share, and pretermitted spouse rights. The policy behind the statute would clearly bar a claim to by the surviving spouse who committed an unlawful killing. The rights set forth in § 732.401 apply to a surviving spouse. Section 732.802 provides that the killer is deemed to have predeceased the victim. It follows that one who is deemed to have predeceased the decedent cannot be a surviving spouse for purposes of § 732.401. The courts have held that the killer should not receive any interest in the estate of the decedent. Although protected homestead is not part of the decedent’s “estate” , the descent of homestead is provided for within the Florida Probate Code. As a result, invalidly devised homestead should be subject to §732.802, as well as validly devised homestead.
732.802. Killer not entitled to receive property or other benefits by reason of victim’s death
(1) A surviving person who unlawfully and intentionally kills or participates in procuring the death of the decedent is not entitled to any benefits under the will or under the Florida Probate Code, and the estate of the decedent passes as if the killer had predeceased the decedent. Property appointed by the will of the decedent to or for the benefit of the killer passes as if the killer had predeceased the decedent.
(2) 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 coownership with survivorship incidents.
(3) A named beneficiary of a bond, life insurance policy, or other contractual arrangement who unlawfully and intentionally kills the principal obligee or the person upon whose life the policy is issued is not entitled to any benefit under the bond, policy, or other contractual arrangement; and it becomes payable as though the killer had predeceased the decedent.
(4) Any other acquisition of property or interest by the killer, including a life estate in homestead property or a spouse’s right to elect a one-half interest as tenant in common, shall be treated in accordance with the principles of this section.
(5) A final judgment of conviction of murder in any degree is conclusive for purposes of this section. In the absence of a conviction of murder in any degree, the court may determine by the greater weight of the evidence whether the killing was unlawful and intentional for purposes of this section.
(6) This section does not affect the rights of any person who, before rights under this section have been adjudicated, purchases from the killer for value and without notice property which the killer would have acquired except for this section, but the killer is liable for the amount of the proceeds or the value of the property. Any insurance company, bank, or other obligor making payment according to the terms of its policy or obligation is not liable by reason of this section unless prior to payment it has received at its home office or principal address written notice of a claim under this section.

736.1104. Killer not entitled to receive property or other benefits by reason of victim's death
(1) A beneficiary of a trust who unlawfully and intentionally kills or unlawfully and intentionally participates in procuring the death of the settlor or another person on whose death such beneficiary's interest depends, is not entitled to any trust interest, including homestead, dependent on the victim's death, and such interest shall devolve as though the killer had predeceased the victim.
(2) A final judgment of conviction of murder in any degree is conclusive for the purposes of this section. In the absence of a murder conviction in any degree, the court may determine by the greater weight of the evidence whether the killing was unlawful and intentional for purposes of this section.