Blogs from November, 2008


Fourth District Court of Appeals provides guidance on the determination of exempt property. In Florida, the law provides that the surviving spouse of a decedent (or the decedent’s children if no surviving spouse) has a right to a share of the decedent’s “exempt property.”

Exempt property
Exempt property is defined in the Florida Probate Code as including (1) household furniture, furnishings, and appliances in the decedent’s usual place of abode, up to a net value of $10,000 as of the date of death;(2) all automobiles held in the decedent’s name and regularly used by the decedent or members of the decedent’s immediate family as their personal automobiles;(3) Florida prepaid college program contracts purchased and Florida college savings agreements established under statutes;(4) all benefits paid pursuant to the statute which provides for death benefits for certain teachers and school administrators. See Fla.Stat. § 732.402(2).

What’s the Big Deal?
The significance of “exempt property” is that it is exempt from all claims against the estate except perfected security interests on such property. It is also a fundamental legal principle in Florida that property specifically or demonstratively devised by the decedent’s will to any devisee will not be included in the exempt property. See, Fla.Stat. 732.402(5). A person, such as a surviving spouse, who wishes to take her share of exempt property simply files (on her own or through her probate attorney) a petition for exempt property. The court then determines each item of exempt property and its value and rules accordingly.

Mr. Babcock remarries and doesn’t change his will
The process was the subject of an appeal of Judge John Phillips in West Palm Beach Florida when the probate court was presented with the will of Bradford Babcock. Babcock v. Estate of Babcock — So.2d —-, 2008 WL 4863088, 33 Fla. L. Weekly D2629b Fla.App. 4 Dist., November 12, 2008 (NO. 4D08-1386) Mr. Babcock’s will provided the following bequest in Article IV:

I devise to my wife, TARA L. BABCOCK, all of my clothing, jewelry, household goods, personal effects, automobiles, and all other tangible personal property not otherwise specifically devised herein or pursuant to the written statement or list described in Article Third of this my Last Will and Testament. If my said wife shall not survive me, I devise all of the aforesaid property to my son, BRAXTON D. BABCOCK, if he shall be living at the time of my death.

What is a pretermitted spouse?
Prior to his death, Mr. Babcock had divorced Tara and remarried Tawn Babcock. Therefore, under well-settled Florida law, and the Florida Probate Code, any provisions affecting Tara became void upon Mr. Babcock’s divorce from her. The relevant section of the Florida Probate Code which revokes portions of a will by operation of law when there is a divorce state:

Any provision of a will executed by a married person that affects the spouse of that person shall be void upon the divorce of that person or upon the dissolution or annulment of the marriage. After the dissolution, divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage unless the will or the dissolution or divorce judgment expressly provides otherwise. See Fla.Stat. §732.507(2).

Because Mr. Babcock’s new wife, Tawn, was not mentioned in the will, she fit the definition of a pretermitted spouse. That section of the Florida Probate Code provides that when a person marries after making a will and the spouse survives the testator, the surviving spouse shall receive a share in the estate of the testator equal in value to that which the surviving spouse would have received if the testator had died intestate, unless provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement; the spouse is provided for in the will, or the will disclose an intention not to make provision for the spouse. Fla.Stat. § 732.301

Therefore, Tawn filed a motion to determine exempt property pursuant to section 732.402(6), Florida Statutes, which provides that the surviving spouse has the right to a share of the “exempt property,” of the estate. In Tawn’s view, Article IV constituted a general bequest of property, not a specific bequest.

Exempt Property Doesn’t Include Specific Devise
The Palm Beach County probate court determined that the property enumerated in Article IV had been specifically bequeathed to the son Braxton, and could not be considered exempt property. Tawn further argued that Article III of the decedent’s will, which stated: “I may leave a written statement or list of certain items of my tangible personal property not otherwise disposed of herein. Any such statement or list in existence at the time of my death shall be determinative with respect to all items devised therein.” She argued that the decedent could not specifically bequeath his property to two different beneficiaries at the same time and that the decedent reserved the right to specifically bequest the property listed in Article IV to another person.

The court and the appellate court disagreed for a couple of reasons and the opinion, which was released on November 12, 2008, provides instruction for will interpretation and gives some notion of predicting how our courts will rule on similar will language in future cases. First, in connection with Tawn’s argument about Article III of the will, the court looked to Article IV and found that it also recognized that the decedent could prepare a written list and dispose of “property not otherwise specifically devised herein pursuant to the written statement or list described in Article Third.” Thus, the will recognizes that an even more specific designation of the property would control over the bequest in Article IV. Therefore, the court concluded that this did not mean that Article IV is not a specific bequest of property.

Further, because the clothing, jewelry, and automobiles mentioned in the will were “particularly designated and can be satisfied only by receipt of the particular property” they fit the classic definition of “specific devise” and were not exempt property. The court relied on the precedent established in In re Estate of Gilbert, 585 So. 2d 970, 972 (Fla. 2d DCA 1991), where the Second District found that a bequest of “all of her jewelry, clothing, and feminine personality . . . was a specific bequest of identifiable property.”
The lesson from the court is that a specific legacy is a gift by will of property which is particularly designated and which is to be satisfied only by the receipt of the particular property described. On the other hand, “[a] general legacy or devise is one which does not direct the delivery of any particular property; is not limited to any particular asset, and may be satisfied out of the general assets belonging to the estate of the testator and not otherwise disposed of in the will.” In re Estate of Udell, 482 So. 2d at 460. See also Park Lake, 106 So. 2d at 217.

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