## Facts

- John W. Finch died owning Florida homestead property (a Boca Raton condominium).
- Finch was survived by his पत्नी, Madeline F. Finch, and two adult daughters (one being Judy Lynn Finch).
- Finch’s will devised the homestead to his पत्नी for life, with a vested remainder to Judy Lynn Finch only.
- The surviving spouse petitioned to set aside the devise as an impermissible homestead devise and sought descent under Florida’s homestead descent statute.
- The probate court invalidated the devise and ordered descent under section 732.401(1), Florida Statutes (1977).
- The Fourth District Court of Appeal affirmed.
- The Florida Supreme Court accepted discretionary review to address the validity and compatibility of the governing constitutional and statutory provisions.

## Issues

1. Whether Florida’s homestead devise restriction permits a testamentary devise to a surviving spouse of less than fee simple (a life estate) when the decedent is also survived by adult lineal descendants.
2. Whether the constitutional homestead devise restriction is compatible with sections 732.4015 and 732.401(1), Florida Statutes (1977), governing prohibited devises and resulting descent.

## Decision

- The Florida Supreme Court affirmed.
- A homestead devise that grants the surviving spouse only a life estate, with a remainder to one child, is not a constitutionally permitted devise and is void.
- Because the devise was prohibited, the homestead descended under section 732.401(1): the surviving spouse took a life estate, and the vested remainder passed to the decedent’s lineal descendants in being at death (both daughters).
- Sections 732.4015 and 732.401(1) were held compatible with article X, section 4(c) of the Florida Constitution as implementing and enforcing its restrictions and consequences.

## Legal Principles

- When a Florida homestead owner is survived by a spouse or minor child, the homestead is generally not subject to devise; the only exception allows devise to the spouse if there is no minor child.
- A testamentary attempt to dispose of homestead outside the permitted constitutional exception is prohibited and void.
- If homestead is not validly devised as permitted by law and the Florida Constitution, it descends as intestate property; where the decedent is survived by a spouse and lineal descendants, the spouse receives a life estate and the lineal descendants receive a vested remainder.
- Statutes that restate the constitutional restriction and supply the intestate descent consequence for prohibited devises are consistent with the constitutional homestead provision.

## Conclusion

The court held that a will may not validly devise homestead by giving a surviving spouse a life estate with a remainder to selected descendants; the prohibited devise is void, and the homestead passes by operation of law as a life estate to the spouse with a vested remainder to all lineal descendants living at the decedent’s death.


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