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Habeeb v Linder

Case No. 3D10-1532 (FL Dist. 3 Ct. App., Feb. 9, 2011)

Richard J. Habeeb, as personal representative of the estate of Mitchell Habeeb, appeals from a summary judgment order finding that a warranty deed executed by Mitchell and his spouse Virginia conveying their marital homestead to Virginia relinquished all spousal homestead rights Mitchell had in the property. We affirm.

Facts

Mitchell and Virginia Habeeb were married for approximately fifty years until Virginia died in 2008. In 1973, the couple took title to a Key Biscayne condominium unit as tenants by the entireties. The condominium unit was their residence and Florida homestead. In 1979, Mitchell and Virginia executed a warranty deed granting to Virginia a fee simple interest in the homestead property. The deed did not include a provision containing the terms “waiver” and “homestead rights,” but it did contain the traditional, sweeping terms of a warranty deed.

In 2006, Virginia executed a will devising a life estate in the condominium unit to Mitchell, with the remainder to her sister Betty. Under the will, Mitchell also received the residuary estate. The couple continued to live in the Key Biscayne property until Virginia passed away in November 2008. Virginia was survived by both Mitchell and Betty. Mitchell died in January 2009, survived by six nephews, including Richard Habeeb (appellant and personal representative of Mitchell’s estate). Betty died in July 2010, survived by her daughter Catherine Risk Linder (appellee and personal representative of Virginia’s estate).

Mitchell’s estate challenged the devise of the homestead property under Virginia’s will. Mitchell’s estate moved for a summary judgment striking the devise and determining that Virginia’s fee simple interest in the condominium passed to Mitchell as her surviving spouse. The trial court denied the motion, and instead granted the appellee’s cross-motion for summary judgment. The trial court concluded that Mitchell had relinquished his entire interest in the property in the 1979 warranty deed, including any spousal rights in the homestead. This appeal followed.
 

 

Judge(s): Vance E. Salter
Jurisdiction: Florida Court of Appeals, Third District
Related Categories: Domestic Relations
 
Trial Court Judge(s)
Celeste Muir

 
Court of Appeals Judge(s)
Leslie Rothenberg
Vance Salter
Richard Suarez

 
Appellant Lawyer(s) Appellant Law Firm(s)
George Elias, Jr.
Rohan Kelley

 
Appellee Lawyer(s) Appellee Law Firm(s)
Robert Goldman Goldman Felcoski & Stone PA

 

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Click the maroon box above for a formatted PDF of the decision.
granting mitchell a life estate and her sister a remainder interest without a third- 4 lower tribunal no. 08-4773 only when mitchell passed away in january 2009 was it suggested that the 1979 analysis article x, section 4(c) of the florida constitution expressly authorizes a we affirm. language, in the property or estate of a present or prospective rights. these alternatives demonstrate that "waive" is not a talismanic word within the statute itself contemplates that a "written contract, agreement, or passed to mitchell as her surviving spouse. the trial court denied the motion, and six nephews, including richard habeeb (appellant and personal representative of condominium. deed was prepared for them by a florida attorney. each spouse signed the rohan kelley (fort lauderdale); george elias, jr., for appellant. among other alleged infirmities, the appellant argues that there is no executed by mitchell and his spouse virginia conveying their marital homestead to directives. as it relates to the condominium, the spouses' right to convey was condominium unit as tenants by the entireties. the condominium unit was their than compact machines. the all-encompassing terms of transfer provide that the documents further illustrated mitchell's understanding that the 1979 deed had corporeal, incorporeal, real, personal, or mixed." 42 fla. jur. 2d property 7 facts title). title insurance underwriting requirements cited by the appellant require wholly or partly, before or after marriage, by a written contract, from this record, the trial court properly concluded that the spouses made mitchell's after the 1979 deed (married to the owner of record, but not himself on legal sufficiency of the transfer or waiver biscayne property until virginia passed away in november 2008. virginia was the waiver, (b) actual or constructive knowledge of the existence of the right, and survived the decedent. gladfelter, 160 so. 2d 740 (fla. 3d dca 1964), the court addressed an alleged before suarez, rothenberg, and salter, jj. mitchell's homestead rights under article x, section 4(c) of the florida spouses who have engaged attorneys to prepare warranty deeds from the two of statutes (1979). "fair" disclosure to each other, and there is certainly no evidence to the contrary. share, homestead property, exempt property, and family allowance warranty deed failed to satisfy the requirements of section 732.702(1), florida of law. ________________ waiver of the constitutional right to trial by jury. in this case. vs. state of florida, january term, a.d. 2011 a spouse's single agreement under section 732.701(1) "is the legal equivalent of relinquishing spousal homestead rights in conformance with section 732.702. in joinder in the 1979 deed was insufficient to constitute a knowing, intelligent 1 indication that mitchell and virginia ever made "fair disclosure to the other of his residence and florida homestead. in 1979, mitchell and virginia executed a states: 3 by each spouse in the property of the other and a renunciation by implies the voluntary and intentional relinquishment of the right.5 party's financial interests and compulsive need for both belt and suspenders. 896 so. 2d 707 (fla. 2005), and winans v. weber, 979 so. 2d 269 (fla. 2d dca second, the virginia relinquished all spousal homestead rights mitchell had in the property. argument that mitchell was required to execute a second "contract, agreement, or them to one of them should not be subjected to post-mortem requirements--which deed failed to relinquish to virginia, or waive, mitchell's homestead rights. the statute, so that a contract or agreement may accomplish the same result. the 1979 warranty deed encompasses the homestead rights of each grantor as catherine risk linder, as personal representative of the estate of contract, or waiver shall be necessary to its validity, whether executed regarding the argument that virginia had to reestablish an independent and conclusion before or after marriage. (emphasis added). survivor. the term includes "anything capable of being inherited, whether it is waiver of all rights to elective share, intestate share, pretermitted and the warranty deed satisfied, the requisite elements of a valid waiver as a matter waiver of right to elect and of other rights. the appellant primarily relies upon raymond james fin. serv., inc. v. saldukas, followed. (2010). the appellant's parade of horrible hypotheticals following such result that the devise of the property in her later will was also valid and effective.3 transactions (which he characterizes as "gotcha waivers") is also unavailing. other by intestate succession or by the provisions of any will instrument before two subscribing witnesses and a notary public. the spouses also mitchell habeeb, deceased, relinquishment of rights in the 1979 deed. mitchell was not a third party, he was a grantor "grants, bargains, sells, aliens, remises, releases, conveys, and confirms" to constitutional rights of one spouse in a marital homestead. the statute establishes, estate if the agreement, contract, or waiver is executed after marriage. virginia habeeb, deceased, constitutional rights. first, when there is doubt whether a constitutional right has under oath a petition for administration of virginia's estate and a petition to 3 muir, judge. a month after virginia passed away in november 2008, mitchell executed simplest illustration, she listed the same condominium as her address as grantee in relinquished mitchell's property rights, including homestead interests, in the they are obviously powerless to satisfy--in order to give effect to their written until virginia died in 2008. in 1973, the couple took title to a key biscayne the grantee "all that certain land," as well as "all the tenements, hereditaments and provides to the contrary, a waiver of "all rights," or equivalent marriage and at a time when both occupied the condominium in question. the waiver" after (1) title had vested exclusively in virginia's name, (2) she "formed and that is what both spouses did in 1979. in this case the term "heriditaments" in 6 unit to mitchell, with the remainder to her sister betty. under the will, mitchell the appellant cites this court's decision to support this principle. in loiselle v. (1) the right of election of a surviving spouse, the rights of the 4 2 the appellant next invokes well-settled principles applied to the waiver of the 1979 deed. there is no evidence that she changed her residence at any time risk linder (appellee and personal representative of virginia's estate). (3) no consideration other than the execution of the agreement, the condominium as her florida homestead after the transfer is undisputed. as the the 1979 deed was signed by both spouses many years into a long-term no disclosure shall be required for an agreement, contract, or waiver florida practitioners in the days when "word processors" were human typists rather third district court of appeal richard j. habeeb, as personal representative of the estate of waiver" may be used to memorialize a relinquishment of a spouse's homestead the appellant is certainly correct that third-party lenders and buyers concluded that mitchell had relinquished his entire interest in the property in the 2007), for this principle. an appeal from the circuit court for miami-dade county, celeste hardee 2 8 the intention that the property would be her domicile or permanent residence," and survived by both mitchell and betty. mitchell died in january 2009, survived by husband and wife to alienate their homestead property "by mortgage, sale or gift," appellee. (c) the voluntary and intentional relinquishment of that right, or conduct which the deed did not include a provision containing the terms "waiver" and 7 clear, their intentions expressed in both the deed and virginia's will were clear, deed.1 the warranty deed, a "ramco form 01," was a pre-printed form widely used by or her estate" before the 1979 deed. the appellant also argues that mitchell's neither the statute nor any interpretation of the statute supports the appellant's executed before the waiver or property settlement. 5 in 2006, virginia executed a will devising a life estate in the condominium mitchell's estate challenged the devise of the homestead property under property, and family allowance, or any of them, may be waived, no. 3d10-1532 the statute was amended after 1979, but those changes do not affect the analysis in this case, however, section 732.702 provides more specific guidance 5 "fair disclosure" opinion filed february 9, 2011. (2) each spouse shall make a fair disclosure to the other of his or her the case at hand, however, virginia participated in and relied upon mitchell's been waived, a presumption should be applied against the waiver.4 ordinarily require the joinder and consent of a spouse in a situation such as executed before marriage. anticipation of, separation, dissolution of marriage, or divorce, is a whether the 1979 warranty deed accomplished a complete transfer or waiver of "homestead rights," but it did contain the traditional, sweeping terms of a warranty and the rights of the surviving spouse to homestead, exempt goldman felcoski & stone, and robert w. goldman (naples), for appellee. waiver of a constitutional right requires (a) the existence of the right at the time of salter, j. trusted and trusting spouse in a cashless transaction. virginia drafted her will bank of florida v. tescher, 578 so. 2d 701, 702 (fla. 1991). in that case, as here, respective assets based on the assumption that the 1979 deed effectively regarding the waiver of the particular constitutional rights involved, namely, the and the result here is thus equally clear. later prepared last wills and testaments reflecting the intended disposition of their ________________ instead granted the appellee's cross-motion for summary judgment. the trial court appurtenances thereto," "in fee simple forever." warranty deed granting to virginia a fee simple interest in the homestead property. also received the residuary estate. the couple continued to live in the key validly transferred all of his rights in the property to virginia at that time, with the waiver of his constitutional rights. devise and determining that virginia's fee simple interest in the condominium before her death. the surviving spouse had waived homestead previously and no minor children affirmed. such a joinder and consent, even if the parties present a "valid nuptial agreement" mitchell and virginia habeeb were married for approximately fifty years 9 habeeb, appeals from a summary judgment order finding that a warranty deed 1979 warranty deed, including any spousal rights in the homestead. this appeal mitchell's estate). betty died in july 2010, survived by her daughter catherine section 732.702, as in effect in 1979,2 appellant, virginia's will. mitchell's estate moved for a summary judgment striking the surviving spouse as intestate successor or as a pretermitted spouse, waiver of mitchell's homestead interests was effectual in 1979 because the spouse, or a complete property settlement entered into after, or in predeceasing the decedent, for purposes of article x, section 4(c)." city national each of all benefits that would otherwise pass to either from the subsequent intention to reside permanently in the condominium after recordation the question presented, apparently one of first impression in florida, is not final until disposition of timely filed motion for rehearing. (3) he survived her. to the contrary, the florida supreme court has concluded that constitution. expressed another way, the appellant argues that no such transfer or agreement, or waiver, signed by the waiving party. unless it of the 1979 deed, her intention to continue residing (and her actual residency) in richard j. habeeb, as personal representative of the estate of mitchell determine the continued homestead status of the condominium property. these


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