De Garcia's Estate v. Garcia

Decision Date09 June 1981
Docket NumberNo. 80-1043,80-1043
Citation399 So.2d 486
PartiesThe ESTATE OF Encarnacion Luaces De GARCIA, Deceased, Appellant, v. Carlos GARCIA, the surviving spouse of the decedent, Encarnacion Luaces DeGarcia, Appellee.
CourtFlorida District Court of Appeals

Gars, Dixon & Shapiro and Irwin S. Gars, Miami, for appellant.

Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern and R. Benjamin Reid, Miami, for appellee.


BASKIN, Judge.

In this appeal from an action by the wife's estate against the husband challenging the trial court's entry of summary judgment and its grant to the husband of an elective share, two issues require resolution. First, we must consider the question raised by the estate in its direct appeal, that is, whether the husband waived, by the execution of an antenuptial agreement in 1956, rights created by the legislature in 1976, including the right to an elective share. Second, we review the question raised by the husband in his cross-appeal, that is, whether by executing the antenuptial agreement he waived his right to homestead. We hold that the husband's waiver of rights to his wife's assets included rights later created by the legislature. We reverse the summary judgment insofar as it permitted the husband to obtain an elective share and affirm the trial court's decision insofar as it ruled that the husband effectively waived his homestead rights.

A few days before their 1956 marriage, Encarnacion Luaces and Carlos Garcia executed an antenuptial agreement which provided:

The Parties hereto expressly agree and covenant that, in the event of the death of the Second Party, the First Party shall not have, and will not assert any claim, interest, estate or title under the laws of any state or of any foreign nation because of such survivorship in or to the property, real, personal or mixed, or life insurance of which such deceased party may die seized or possessed, except as hereinafter provided. The Party of the First Part, for himself and his heirs, hereby relinquishes to the heirs, devisees, administrators, executors and assigns of the Second Party any and all of his claim, distributive share, interest, estate or title that he would be entitled to as surviving husband; and he further agrees, upon demand, to make, execute and deliver to the heirs, devisees, administrators, executors and assigns of the Second Party any and all such claim, interest, estate, right, or title; and, on demand, to make, execute and deliver to the heirs, devisees, administrators, executors and assigns of such deceased party, any and all assignments, assurances, deeds, instruments and receipts that may be necessary and required to efectually (sic) carry out and make effective the agreements herein contained. In the event that either party shall die testate, nothing herein contained shall be a bar to the survivor from claiming, under said last will and testament, in the event that said survivor is a beneficiary thereunder.

The agreement also stated:

That all properties of any name or nature, real, personal or mixed wherever ... found, which belong to (Encarnacion) prior to the contemplated marriage between the parties, shall be and remain forever the personal Estate of (Encarnacion) ....

All property belonging to (Encarnacion) at the commencement of the marriage, or acquired by, or coming to her during the marriage, shall be held and enjoyed by her, and be subject to her disposition as her separate property, in the same manner as if this proposed marriage had never been celebrated ....

The wife executed a will in 1973 leaving Carlos Garcia a life estate in her home and, a few days later, added a codicil providing him $14,000 a year derived from interest on bonds.

In 1973 the legislature amended the dower laws and extended dower to husbands. Ch. 73-107, Laws of Fla. (1973). Subsequently, the legislature enacted the Florida Probate Code, effective January 1, 1976, and replaced dower with the right to an elective share. 1 On February 21, 1979, Encarnacion Luaces de Garcia died. Her husband filed for an elective share, but the estate resisted the claim. Upon motion, the trial court entered Summary Final Judgment finding:

1. That all rights of husband Carlos Garcia, except that of elective share were waived by the Ante-Nuptial Agreement by virtue of F.S. 732.702;

2. That said statute controls, although it was enacted after execution of the agreement, since by said statute the legislature established the public policy regarding such agreements and how they should be construed.

3. That Carlos Garcia, by laches, cannot now attack the agreement twenty-three years after its execution and after the death of his wife, during which time he admittedly learned early that she was a wealthy woman.

4. That despite all of the above, Carlos Garcia did not waive his elective share, since it was unknown to him at that time, and as a matter of fact only came into existence many years later by enactment of law by the legislature. One cannot waive that which is not known or in existence at the time, nor contemplated in the future;

5. That furthermore, although the language of the agreement is extremely strong to the effect that the wife's property shall be entirely and forever hers under all circumstances, it would be inequitable to deprive Mr. Garcia of rights by virtue of a statute enacted after the execution of the agreement (F.S. 732.702) while at the same time deprive him of the benefits of a statute likewise enacted after such execution (F.S. 732.201); wherefore, it is,


That Estate's Motion for Summary Judgment is GRANTED as to all claims of Carlos Garcia except that of Elective Share, upon which said Motion is DENIED.

First, we review the 1976 legislation according the husband an elective share and consider the question concerning whether he may be held by a 1956 agreement to have waived rights which did not arise until 1976.

We are guided in our endeavor by established principles, among them that statutes operate prospectively unless a contrary intent is clearly expressed. Dewberry v. Auto-Owners Insurance, Co., 363 So.2d 1077 (Fla.1978). Because the Florida Probate Code, effective 1976, does not contain clear language evidencing a contrary intent, Haney v. Holmes, 364 So.2d 81 (Fla.2d DCA 1978), appeal dismissed, 367 So.2d 1124 (Fla.1979), the principle prevails. Section 731.011, Florida Statutes (1977), the Florida Probate Code, tells us that procedural rights under the Probate Code apply prospectively whereas vested substantive rights remain unaffected and are determined by the law in effect at the time of death. See also In re Estate of Reed, 354 So.2d 864 (Fla.1978); In re Estate of Rincon, 327 So.2d 224 (Fla.1976); In re Estate of Geringer, 300 So.2d 710 (Fla.3d DCA 1974), cert. denied, 311 So.2d 114 (Fla.1975); In re Roger's Estate, 171 So.2d 428 (Fla.2d DCA 1965). Encarnacion Luaces de Garcia died on February 21, 1979; thus the law in effect at the time of her death, the 1976 Florida Probate Code, governs this proceeding.

Section 732.702 provides that a right of election may be waived:

(1) The right of election of a surviving spouse, the rights of the surviving spouse as intestate successor or as a pretermitted spouse, and the rights of the surviving spouse to homestead, exempt property, and family allowance, or any of them, may be waived, wholly...

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6 cases
  • James v. James
    • United States
    • Florida District Court of Appeals
    • March 7, 2003
    ... ... amounts up to $10,000 per year per child so long as the gifts were consistent with "prudent estate planning and financial management, and after consultation with Mellon Bank NA." Paragraph 17 ... ...
  • Estate of Sage v. Sage
    • United States
    • Florida District Court of Appeals
    • November 18, 1987
    ...474 So. 2d 206 (Fla.1985); Flagship National Bank of Miami v. King, 418 So.2d 275, 277 (Fla. 3d DCA 1982); Estate of Garcia v. Garcia, 399 So.2d 486, 489, (Fla. 3d DCA), petition for review denied, 407 So.2d 1103 (Fla.1981); Topper v. Stewart, 388 So.2d 1270 (Fla. 3d DCA 1980), petition for......
  • Wadsworth v. First Union Nat. Bank of Florida
    • United States
    • Florida District Court of Appeals
    • August 2, 1990
    ...the statute permits the surviving spouse to waive her constitutional right, and she did so, it was waived. Estate of De Garcia v. Garcia, 399 So.2d 486 (Fla. 3d DCA 1981). When decedent died with no one there to assert a homestead right the property could pass by devise and it did under the......
  • Musico v. Musico, 81-1410
    • United States
    • Florida District Court of Appeals
    • September 8, 1982
    ...v. Weintraub, 417 So.2d 629 (1982); Flagship National Bank of Miami v. King, 418 So.2d 275 (Fla. 3d DCA, 1982); Estate of Garcia v. Garcia, 399 So.2d 486 (Fla. 3d DCA), petition for review denied, 407 So.2d 1103 (Fla.1981); In re Stegman's Estate, 42 Misc.2d 273, 247 N.Y.S.2d 727 (Surr.Ct.1......
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1 books & journal articles
  • Morey v. Everbank: three drafting tips to avoid a troubling decision.
    • United States
    • Florida Bar Journal Vol. 87 No. 7, July 2013
    • July 1, 2013
    ...toward general waivers to include rights that were not yet in existence when the waiver was executed. In De Garcia's Estate v. Garcia, 399 So. 2d 486 (Fla. 3d DCA 1981), rehearing den., 402 So. 2d 1103 (Fla. 1981), which is another case involving an antenuptial agreement, the court held tha......

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