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
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MAR - APR 2019
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HCBA LAWYER
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