Dorothy M. Clifton v. Lonnie R. Clifton, Sr., et ux., et al.

Summary

In Clifton v. Clifton, 553 So. 2d 192 (Fla. 5th DCA 1989), the court held that a residuary clause in a will effectively devises Florida homestead property to a surviving spouse when all children are adults, even if the devise was unconstitutional at the time the will was executed. The surviving spouse was not estopped from claiming the fee interest despite her earlier participation in summary probate, because she took no misleading actions, her mistake was one of law, and she acted promptly upon learning of her rights. The decision also confirms that joinder in a probate petition does not waive inheritance rights and that any agreement to alter estate interests must be in writing under section 733.815, Florida Statutes.

Holdings

1. The record fails to establish any basis for estoppel against Dorothy Clifton.
2. The residuary clause of the decedent's will validly devised the homestead in fee to his surviving spouse because all his children were adults at the time of his death.
3. Joinder in a summary probate petition that contains no statements altering inheritance rights does not constitute a waiver of those rights.

Questions Presented

1. Whether the testator's residuary clause effectively devised a fee simple interest in homestead property to his surviving spouse when all children were adults.
2. Whether the surviving spouse was estopped from claiming the fee interest because she participated in summary probate proceedings without asserting her full ownership and because third parties later relied on their mistaken assumption about the descent of the property.

Disposition

reversed_and_remanded