CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2014 Fla. App. LEXIS 18431, 2014 WL 5834826
...The parties subsequently filed cross motions for
summary judgment.
On November 18, 2011, the trial court entered a final summary
judgment in favor of Nancy. The trial court found that the QPRT was an
irrevocable trust, meeting the requirements of section 732.4017, Florida
Statutes (2010)....
...See Engelke,
921 So. 2d at 697.
Inter Vivos Transfer of Homestead Property
Notwithstanding the homestead devise restrictions, property owners
may give away or dispose of homestead property during their lifetimes,
including by transfer to a trust. Section
732.4017, Florida Statutes,
provides:
(1) If the owner of homestead property transfers an interest in
that property, including a transfer in trust, with or without
consideration, to one or more persons during the owner’s...
...he transferor
to revoke or revest the interest in the transferor,
including, without limitation, survival of the transferor.
(4) It is the intent of the Legislature that this section clarify
existing law.
§ 732.4017, Fla....
...his estate at the time of his death. See Baskies, supra, at 75; Borrok,
supra, at 36; Humphreys, supra, at 45. The settlor thus gains the tax
advantages of a QPRT only by surviving the term of the trust.
QPRTs are permitted under Florida law by section 732.4017, Florida
Statutes, and under the federal tax code by Internal Revenue Code section
2702(a)(3)(A)(ii) and Treasury Regulation section 25.2702-5(c)....
...The issue before the trial court was whether the transfer of Jerome’s
interest in the property to Nancy after Jerome’s death was an
impermissible devise of homestead property. The court found that
Jerome’s QPRT satisfied the requirements of section 732.4017, and,
therefore, the QPRT was the owner of the property at the time of Jerome’s
death and the transfer of the property to Nancy was not a devise for the
purpose of the homestead devise restrictions. On appeal, Ross argues that
(1) given the control retained by Jerome, the trial court erred in applying
section 732.4017; (2) the trial court erred in retroactively applying section
732.4017, which was enacted in 2010, to the QPRT created in 2000; and
7
(3) because the property passed to Nancy by devise under Jerome’s will,
the constitutional and statutory limitations on the devise of homestead
property necessarily apply....
...but erred in extending that finding to the transfer of Jerome’s interest in
the property to Nancy after Jerome’s death. The latter transfer should
have been treated as a devise, subject to the homestead devise restrictions.
The trial court properly applied section 732.4017 to the initial transfer
of Jerome’s interest in the property to the QPRT. Section 732.4017(1)
provides that an inter vivos transfer of homestead property to a trust will
not be treated as a devise, provided the settlor did not retain a power to
revest the property in himself. See § 732.4017(1), Fla....
...The trial court
correctly found that Jerome did not retain the power to revoke or amend
the QPRT or to revest the property in himself. Article XX of the trust
agreement prohibits the trustee from selling or transferring the property
back to Jerome. Section 732.4017(3)(a) expressly allows the settlor to
retain an interest in the property in the form of a possibility of reverter.
See § 732.4017(3)(a), Fla. Stat. The fact that Jerome retained such an
interest does not place Jerome’s transfer of the homestead property
outside the parameters of section 732.4017.
Ross’ argument that section 732.4017 should not have been applied
retroactively is wholly without merit. The statute expressly states that it
was intended to clarify existing law. See § 732.4017(4), Fla....
...4th DCA 2008) (finding that an express legislative
statement that a statute is intended “to clarify existing law” should be
8
taken as strong evidence of legislative intent that the statute should apply
retroactively). Therefore, we find the trial court properly applied section
732.4017 to the transfer of Jerome’s interest in the property to the QPRT
and correctly held that this initial transfer was not a devise subject to the
homestead devise restrictions.
However, we find the trial court erred in extending the application of
section 732.4017 to the subsequent transfer of Jerome’s interest in the
property to Nancy after Jerome’s death. Nancy argues simply that the
property was disposed of pursuant to section 732.4017 and, therefore, the
entire transfer was not a devise for the purpose of the homestead devise
restrictions....
...he
death of the settlor, the trust is not testamentary.”). Ross concedes this
point.
But, because Jerome failed to outlive the term of the QPRT, the transfer
of the property was not completed pursuant to the terms of the trust as
permitted by section 732.4017....
...ould ignore the plain fact
that, in this case, the property ultimately reverted back to the estate and
passed to Nancy through the terms of Jerome’s will, and would allow an
improper circumvention of the homestead devise restrictions.
Although section 732.4017(3)(a) allows the settlor of a QPRT to retain a
9
possibility of reverter, the statute does not speak to whether subsequent
transfers of the property following such a reversion, pursuant to the terms
of the settlor’s will, should be treated as a devise....
...and welfare
of the state by securing to the householder a home, so that the homeowner
and his or her heirs may live beyond the reach of financial misfortune and
the demands of creditors.”).
Therefore, we find the trial court erred in applying section 732.4017 to
find that the transfer of Jerome’s interest in the property to Nancy after
Jerome’s death, pursuant to the terms of Jerome’s will, was not a devise.
We hold that when a homeowner transfers property to a QPRT pursuant
to section 732.4017 and the property later reverts back to the
homeowner’s estate because the homeowner fails to survive the term of
the QPRT, a subsequent disposition of the property pursuant to the
homeowner’s will is a devise....
...Conclusion
In conclusion, we find the trial court erred in ruling that the transfer of
Jerome’s interest in the property to Nancy after Jerome’s death was not a
devise. We hold that when a homeowner transfers property to a QPRT
pursuant to section 732.4017, Florida Statutes, and the property later
reverts back to the homeowner’s estate because the homeowner fails to
survive the term of the QPRT, a subsequent disposition of the property
pursuant to the homeowner’s will is a devise, subject to the constitutional
homestead devise restrictions....
