Greenberg's Estate, In re

• Decision Date: 30 October 1980
• Docket Number: No. 58794,58794
• Citation: 390 So.2d 40
• Parties: In re ESTATE of Leo GREENBERG, Deceased.
• Court: Florida Supreme Court

Page 40

390 So.2d 40

In re ESTATE of Leo GREENBERG, Deceased.

No. 58794.

Supreme Court of Florida.

Oct. 30, 1980.

I. Meyer Pincus, in pro. per.

Gene Glasser of Abrams, Anton, Robbins, Resnick & Schneider, Hollywood, for the Greenberg Estate, appellee.

Jim Smith, Atty. Gen. and Bruce Barkett and Thomas A. Beenck, Asst. Attys. Gen., Tallahassee, for Attorney General, amicus curiae.

James G. Pressly, Jr. of Gunster, Yoakley, Criser & Stewart, Palm Beach, for The Florida Bar, Real Property, Probate and Trust Law Section, amicus curiae.

ALDERMAN, Justice.

Meyer Pincus appeals an order of the circuit court denying his petition for appointment as a co-personal representative of the estate of Leo Greenberg. Upholding the constitutionality of sections 733.302 and 733.304, Florida Statutes (1977), the trial court denied this petition on the basis that Pincus was not a resident of Florida and was not related to Greenberg. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution (1972). Against challenges that they violate the equal protection and due process clauses of the fourteenth amendment and the privileges and immunities clause of article IV, section 2 of the Constitution of the United States, we uphold the constitutionality of sections 733.302 ¹ and 733.304 ² and affirm.

Under these statutory provisions, a nonresident of Florida who is not related to decedent as specified in section 733.304 may not qualify as a personal representative. Pincus claims that the residency classification established by these statutes violates the equal protection clause of the fourteenth amendment and maintains that in evaluating his equal protection challenge, we should not apply the rational basis test normally applied in evaluating such challenges, but instead we should utilize the strict scrutiny test because the act impinges on the testator's "fundamental" right to appoint his personal representative and fundamental right to travel and abridges Pincus's right to pursue a livelihood.

The rational basis or minimum scrutiny test generally employed in equal protection analysis requires only that a statute bear some reasonable relationship to a legitimate state purpose. That the statute may result incidentally in some inequality or that it is not drawn with mathematical precision will not result in its invalidity. Rather, the statutory classification to be held unconstitutionally violative of the equal protection clause under this test must cause different treatments so disparate as relates to the difference in classification so as to be wholly arbitrary. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Walters v. City of St. Louis, 347 U.S. 231, 74 S.Ct. 505, 98 L.Ed. 660 (1954).

The strict scrutiny analysis requires careful examination of the governmental interest claimed to justify the classification in order to determine whether that interest is substantial and compelling and requires inquiry as to whether the means adopted to achieve the legislative goal are necessarily and precisely drawn. Examining Board v. Flores De Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976). This test, which is almost always fatal in its application, imposes a heavy burden of justification upon the state and applies only when the statute operates to the disadvantage of some suspect class such as race, nationality, or alienage or impinges upon a fundamental right explicitly or implicitly protected by the constitution. Those fundamental rights to which this test applies have been carefully and narrowly defined by the Supreme Court of the United States and have included rights of a uniquely private nature such as abortions, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); the right to vote, Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); the right of interstate travel, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); first amendment rights, Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); and procreation, Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942).

The Supreme Court of the United States has refused to expand fundamental rights beyond those explicitly or implicitly guaranteed by the constitution. Addressing the constitutionality of the Texas statutory system for public education against an equal protection challenge, the Supreme Court, in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), held that the financing system did not impinge on any fundamental right so as to call for application of the strict scrutiny test since education was not a right afforded explicit or implicit protection under the constitution. The Supreme Court carefully delineated the limits of the fundamental rights rationale in its equal protection decisions; explained that the Court does not pick out particular human activities, characterize them as fundamental, and then give them added protection; and emphasized that it was not within the Court's province to create substantive rights in the name of guaranteeing equal protection. It declared that just because state legislation affects a matter gravely important to society, this is not a sufficient basis to characterize it as fundamental. See also Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972). Rather, the Court stated that it merely recognizes an established constitutional right and gives to that right no less protection than the constitution itself demands.

Pincus characterizes as fundamental the testator's right to appoint a personal representative, thus impelling application of the strict scrutiny test. We cannot agree since this right is not one explicitly or implicitly guaranteed by the constitution. In fact, the right to make a will and other matters relating thereto such as designation of a personal representative are rights created by statute. The constitution commits to the states the power to control the administration of the estates of their citizens. Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971); Demorest v. City Bank Farmers Trust Co., 321 U.S. 36, 64 S.Ct. 384, 88 L.Ed. 526 (1944). There is nothing in the federal constitution which would forbid the state legislature to limit, condition, or even abolish the power of testamentary disposition of property within its jurisdiction. We have ofttimes reiterated that the power to alienate property by last will and testament is not an inherent right of a citizen but rather is one derived from legislation. Efstathion v. Saucer, 158 Fla. 422, 29 So.2d 304 (1947); Taylor v. Payne, 154 Fla. 359, 17 So.2d 615 (1944), appeal dismissed, 323 U.S. 666, 65 S.Ct. 49, 89 L.Ed. 647 (1944); In re Sharp's Estate, 133 Fla. 802, 183 So. 470 (1938). See also Simon, Redfearn Wills and Administration in Florida, 5th edition (1977), section 2.03. Notwithstanding the decision of the federal district court in Fain v. Hall, 463 F.Supp. 661 (M.D.Fla.1979), which we find to be wholly unpersuasive, we hold that the right to appoint a personal representative is not one of the fundamental rights implicating utilization of the strict scrutiny test.

Relying on Shapiro v. Thompson; Dunn v. Blumstein ; and Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974), Pincus argues that sections 733.302 and 733.304 infringe upon the testator's fundamental right to travel and, therefore, the strict scrutiny test must be applied. The right to travel throughout the states has been recognized by the Supreme Court of the United States as a constitutionally protected right implicating application of the strict scrutiny test whenever this right is penalized or somehow impinged upon by a legislative classification.

In Shapiro v. Thompson, the Supreme Court, employing the strict scrutiny test, struck a one-year durational residency requirement because it imposed a classification on welfare applicants which impinged on their right to travel freely from state to state. The Court held that the waiting period denied welfare benefits to otherwise eligible applicants solely because they recently moved into the jurisdiction. Then, in Dunn v. Blumstein, although holding a Tennessee durational residency requirement unconstitutionally violative of the equal protection clause, the Supreme Court emphasized that its decision was not intended to cast doubt on the validity of appropriately defined and uniformly applied bona fide residency requirements.

Later in Memorial Hospital v. Maricopa County, the Supreme Court held unconstitutionally violative of the equal protection clause an Arizona statute governing medical care for indigents requiring an indigent to be a resident of the county for the preceding twelve months in order to be eligible for free, nonemergency medical care because it impinged on the right of interstate travel by denying newcomers the basic necessities of life. The Court, however, narrowly confining its earlier decisions in Dunn and Shapiro, explained that the right to travel entails more than merely movement and that although a durational residency requirement impinges on the right to travel to some extent, the Court, in Shapiro, did not declare this requirement to be per se unconstitutional because it in some manner affected the right to travel. The Court emphasized that its earlier holding in Shapiro was conditioned on the caveat that some residency requirements would not be penalties upon the exercise of the constitutional right of interstate travel and that Shapiro did not make clear the amount of impact required to give rise to the compelling state interest test. The Court held that the compelling state interest test is triggered by any classification which serves to penalize the exercise of the right to travel but further stated that the...