HCBA Lawyer Magazine Vol. 29, No. 4 | Page 57

Can an Heir agree To release all rigHTs To an anCesTor’s esTaTe? real property probate & Trust Section Chairs: Kristin Morris – Shutts & Bowen & Elaine McGinnis – Law Office of Elaine McGinnis, P.A. The possibility exists that a release governed by Florida law, if challenged, could potentially be I deemed unenforceable. n a majority of jurisdictions in the United States, as well as in England and Canada, an agreement between an heir and his or her ancestor whereby the heir releases all rights to his or her prospective share of the ancestor’s estate in exchange for valuable consideration is valid and enforceable against the heir after the ancestor’s death. 1 But a minority of jurisdictions hold that such releases are not valid agreements and therefore are unenforceable. Based on Towles v. Roundtree, Florida currently follows the minority view. 2 Roundtree concerned grandchildren’s rights to inherit from their maternal grandfather through intestate succession, despite their deceased father’s signature on an instrument alleged to be a release of any claims to the grandfather’s estate. In Roundtree, the Florida Supreme Court held that the instrument at issue did not deprive the grand children of all claims to an inheritance. Rather, it only furnished evidence of an advancement, which reduced the value of the grand - children’s inheritance. Notably, Roundtree is from 1869 — which was over 140 years ago. Today, Roundtree could be materially distinguishable if an heir’s release was challenged. The issue before the court in Roundtree was not whether the grandchildren waived their rights, but rather whether the father had waived the grandchildren’s rights by signing the instrument. Because the persons seeking to inherit were not the same person who signed the release, Roundtree’s holding arguably should not be extended to an heir who signs a release. Not to mention that, in Roundtree, the release was held to be invalid to bar the grandchildren’s claims to inherit through intestate succession. Roundtree’s holding, if it applies at all, should be limited to releases of the right to inherit through intestate succession. It should not apply to an heir’s release of the right to contest a will or trust. Further, most of the cases ruling on the validity of a release of an heir’s rights to an ancestor’s estate are of an equitable nature. So, at law, an heir seeking to inherit could be deemed in breach of the release agreement merely for bringing a claim. While Roundtree may be distin - guishable on a number of bases, a release governed by Florida law, if challenged, could still be deemed unenforceable or be treated as an advancement in the amount of the consideration provided to the heir. See generally, Release to ancestor by heir expectant, 28 A.L.R. 427. 2 10 Fla. 299 (Fla. 1863); see also Assignment or release of expectancy, 17 Fla. Jur. 2d Decedents’ Property § 73. By comparison, an heir can assign his expectancy interest in an estate to a third party if the assignment is fair, satisfies the court’s equitable considerations, and is supported by sufficient consideration. Diaz v. Rood, 851 So. 2d 843, 846 (Fla. 2d DCA 2003). 1 Authors: Lauren Taylor and Nicole Zaworska - Shutts & Bowen LLP students and government attorneys pay reduced membership rates! Join today at hillsbar.com. MAR - APR 2019 | HCBA LAWYER 55