LORENZO V. MEDINA & MEDINA

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State: Florida

Court: Florida Third District Court

Docket No: 10-1243

Case Date: 11/10/2010

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2010
Opinion filed November 10, 2010. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D10-1243 Lower Tribunal No. 09-280 ________________

Jesus Lorenzo,
Appellant, vs.

Isabel Medina and Jose Antonio Medina,
Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Arthur L. Rothenberg, Judge. Osvaldo N. Soto and Lorenzo Cobiella; and Arnaldo Velez, for appellant. Abrams & Abrams and David S. Abrams, for appellees.

Before SUAREZ, ROTHENBERG, and SALTER, JJ. ROTHENBERG, J.

We reverse an order construing the will of Cecilia Lorenzo ("the Testator"). The Testator passed away on October 20, 2008, with an estate consisting of a parcel of residential property in Hialeah. In 2009, the Testator's will was admitted to probate. The Testator's will provided for a bequest of the entire estate as follows: [T]o my brother, JOSE R. MEDINA and to my brother in law, JESUS LORENZO, in equal shares. If either of them do not survive me, the share of the deceased shall be given to their surviving spouse, JUANA R. MEDINA or MARIA LORENZO respectively. Without question, the operation of the will provides for a minimum fifty percent share of the Testator's estate to the Testator's brother-in-law, Jesus Lorenzo ("the brother-in-law"), who survived the Testator. The issue in this

appeal is who is entitled to the remaining fifty percent of the Testator's estate since the intended recipients, the Testator's brother, Jose R. Medina, and his wife, Juana R. Medina, both predeceased the Testator. The trial court's order awarded this disputed portion of the Testator's bequest to the appellees, Isabel Medina and Jose Antonio Medina ("the niece and nephew"), who are the surviving children of Jose R. Medina and Juana R. Medina. In December 2009, the brother-in-law filed a petition for construction of the Testator's will, arguing that the bequest to the two deceased relatives, Jose and Juana R. Medina, lapsed, and therefore, he was entitled to an undivided interest in the property. The niece and nephew argued that pursuant to section 732.603(1), 2

Florida Statutes (2008), the anti-lapse statute, they were entitled to a fifty percent share of the property. The trial court issued the instant order finding that the niece and nephew were entitled to a fifty percent share, and the brother-in-law was entitled to a fifty percent share. The brother-in-law's appeal followed. As a matter of common law, when a will provides for a bequest to a person who predeceases the testator, the gift lapses. Tubbs v. Teeple, 388 So. 2d 239, 239 (Fla. 2d DCA 1980) ("When a legatee under a will predeceases the benefactor, the gift lapses."). The potentially harsh effects of this common law rule are

ameliorated to an extent by the operation of statute. When the predeceased devisee is a descendant of the testator's grandparents, section 732.603 will "save" the lapsed gift by creating a substitute gift in the devisee's descendants.

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