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By Michael T. Lahti
As reported in a recent article (the LISI Estate Planning Newsletter #2268 (January 9, 2015 discussing the court decision in Brenner et. al. v. Scott et. al. and Grimsley et. al. v. Scott et. al. (“Brenner/Grimsley”)), Florida became the 35th state plus the District of Columbia in which same-sex marriage is legal. With this victory, many have asked whether this now ends the long battle for same-sex marriage in Florida, and with it all of the complications of being a ‘non-recognition state.’ Unfortunately not. In actuality, this is only the beginning of the issues that need to be unraveled in Florida subsequent to the decision. The article raised several issues concerning the effect of retroactivity after the decision.
By Florida declaring the law unconstitutional it means that the law is void ab initio or void from the outset. (It is if the unconstitutional law had not existed from the outset.) This digs deep into both real property and probate law. The article provided several good examples.
Consider the concept of “joinder” and the Florida homestead. Article X, Section (4)(c) of the Florida Constitution provides, in pertinent part, as follows: “The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift ...” (emphasis added.) Thus any transfer of property by a married Florida resident requires the joinder of the spouse on the deed.
For example, consider the scenario where a same-sex married couple had a residence titled solely in the name of one of the spouses. What if the title-holding spouse sold the property in 2013? Well, if it were an opposite sex couple, then Florida homestead law would nevertheless require the other spouse to join in the transfer. However, prior to the decision, in 2013 same-sex marriages were not recognized under Florida law. As a result, many properties may have been transferred without what we now see is the required consent of the spouse. With retroactivity, if Florida’s State Law DOMA provisions are deemed never to have existed, are these pre-decision transfers now void because they were not properly executed?
The article ponders how this should be resolved – should legislation be adopted applying the Brenner/Grimsley decision prospectively? If so, how should such legislation be enacted so as to conform to Florida Constitutional law regarding the joinder issue? Further, how do any mortgages or other security interests that may be attached to the particular property affect this? These are all issues that will probably have to be thrashed out in courts at some point.
Consider the effect on probate. From the Probate perspective, the decision creates confusion with issues including, but not limited to, homestead, the elective share and intestacy. Some examples might make this clearer.
Devise and Descent of Homestead: In Florida homestead there are strict limits on the how homestead property can be left upon death if there is a surviving spouse. If there are no minor children any devise other than to the surviving spouse is void. So how does this affect the same-sex spouse who was not left the homestead property upon his spouse’s death? For instance if the same-sex spouse has been deprived of the homestead property upon death of his spouse, is there now a “cloud” on the title to the property? Should there be some ability for such spouse to claim his homestead interest in the residence? If so, should there be a time limit on how far back in time that he can claim a homestead interest? If not, should legislation be added to clarify that a same-sex surviving spouse cannot retroactively claim a homestead interest from the estate and deceased spouse’s descendants?
Elective Share & Intestacy: Under Fla. Stat. §732.2065, a surviving spouse is entitled to receive an “elective share” equal to 30% of the deceased spouse’s “elective estate.” Can a disinherited same-sex spouse retroactively file for the elective share? And to fully complicate matters, consider the same-sex spouse who dies without a Will or Trust, where the estate has passed down to children to the exclusion of the same-sex spouse?
Does the retroactivity of the Brenner/Grimsley opinion render intestate (distribution when no estate plan exists) invalid because the same-sex spouse would now become an intestate heir as the surviving spouse? Should such spouse be able to retroactively claim his one-half share of the intestate estate?
The article referred to these issues as a Grand Canyon-size quagmire, but noted that the good news is that there is precedent indicating that when an unconstitutionality decision would harm a private citizen, states can legislate to protect the harmed citizen. In other words, Florida can enact legislation to overcome the retroactivity. Presently the Real Property Probate & Trust Law Section of the Florida Bar has created an ad hoc subcommittee to discuss and propose potential legislative changes to the real property and Probate laws. Clearly, the Subcommittee has its work cut out for it in resolving these issues.