Smith v. Unkefer

Full title: LARRY R. SMITH, APPELLANT, v. BETTY UNKEFER, DORIS UNKEFER, MARY MORRIS…

Court: District Court of Appeal of Florida, Second District

Date published: Nov 19, 1987

515 So. 2d 757 (Fla. Dist. Ct. App. 1987)

Opinion

No. 86-2656.

October 9, 1987. Rehearing Denied November 19, 1987.

Appeal from the Circuit Court, Lee County, James R. Thompson, J.

Richard A. Josepher and Thomas Ruffin III of Fine, Jacobson, Schwartz, Nash, Block England, P.A., Miami, for appellant.

Robert P. Henderson of Simpson, Henderson, Savage Carta, Fort Myers, for appellees.

LEHAN, Judge.

We affirm the trial court's order which provided that the portion of the federal estate taxes owed upon the estate of Russell D. Smith which is attributable to the property in question in this case is payable by the recipients of the property pursuant to section 733.817(1)(e), Florida Statutes (1985).

We do not agree with the argument of appellant, who is the recipient of the property, that that portion of those taxes should not be so payable because the property was exempt homestead property subject to the provisions of section 733.817(1)(d). Section 733.817(1)(d) provides that "[p]ersons taking an interest in the homesteads shall not be liable for apportionment of taxes on account of the homesteads." But even if the property had homestead status during the life of Russell D. Smith, which we need not decide, appellant, in our view, was not a person so "taking an interest" because his interest in the property was pursuant to a deed. Prior to his death Russell D. Smith had deeded the property to appellant, retaining a life estate in himself. Upon his death appellant, as remainderman, succeeded to full title to the property under the deed.

That, as appellant also argues, the property became his homestead immediately upon the death of Russell D. Smith because he had lived on the property with him and continued to live there upon and after his death is, in our view, not determinative. We conclude that the homestead status to which section 733.817(1)(d) refers is that of property while in the possession of the decedent. This conclusion is supported by the foregoing language of that section. That is, by referring to "persons taking an interest in the homesteads," the statute refers to homestead property from which an interest could be taken, which means the homestead of the decedent.

Affirmed.

SCHEB, A.C.J., and CAMPBELL, J., concur.