Third District Court of Appeal
State of Florida
Opinion filed October 7, 2026.
Not final until disposition of timely filed motion for rehearing.
No. 3D25-0817
Lower Tribunal No. 18-591-CP-02
Pauline Walters, as Personal Representative for the Estate of
Enid May Townsend,
Appellant,
vs.
Agency for Healthcare Administration,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Bertila Soto, Judge.
Law Office of Dexter F. George, and Dexter F. George (Plantation), for appellant.
Alexander R. Boler (Tallahassee), for appellee.
Before LOGUE, LINDSEY, and GOODEN, JJ.
LOGUE, J.
Pauline Walters, as Personal Representative for the Estate of Enid May Townsend, appeals a trial court order that held a cooperative unit was
not real property and therefore was not protected by the Florida
Constitution’s homestead provisions from forced sale to satisfy debts to a
creditor of the Estate. We held as much when this case was previously
before us. Walters v. Agency for Health Care Admin., 288 So. 3d 1215, 1218
(Fla. 3d DCA 2019). Subsequently, however, in 2021, the Florida Legislature
amended section 719.103(25), Florida Statutes (2021), to provide that an
interest in a cooperative unit is an interest in real property. The issue in this
appeal is whether the 2021 amendment to section 719.103(25) applies
retroactively to the date of Enid May Townsend’s (“Decedent”) death. The
trial court held that the amendment did not apply retroactively. We affirm.
BACKGROUND
The Decedent died intestate on August 29, 2017. The Decedent’s sole
heir was her daughter, Pauline Walters. On February 8, 2018, Walters filed
a petition for summary administration of the Decedent’s estate. The estate’s
only asset was the Decedent’s interest in a cooperative unit, which Walters
proposed be distributed to herself as protected homestead property.
On March 21, 2018, the Agency for Health Care Administration (the
“Agency”) filed a statement of claim against the Decedent’s estate for
$81,276.76. This amount represented the Decedent’s debt that resulted from
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her acceptance of Medicaid benefits from the Agency. See §§ 409.9101,
414.28, Fla. Stat. (2018).
The following day, on March 22, 2018, Walters filed a petition to
determine homestead status of the Cooperative Unit. In the petition, Walters
described the Cooperative Unit as “Cooperative Stock, 16900 NW 14th
Avenue, Apt. 203, North Miami Beach, FL 33162.” Walters argued “[t]he
Property constituted the homestead of the decedent within the meaning of
Section 4 of Article X of the Constitution of the State of Florida,” and,
therefore, title to the Cooperative Unit passed to Walters upon the
Decedent’s death and the constitutional exemption from claims of the
Decedent’s creditors—in this case, the Agency—also inured to Walters’
benefit at that time.
In response, the Agency filed an objection to the Homestead Status
Petition and argued the Cooperative Unit was not entitled to the homestead
exemption because it was “not a fee simple interest in land as required by
law.”
On June 21, 2018, following a hearing, the trial court entered the 2018
Homestead Status Order, stating that “the Petition to Declare Decedent’s
CO-OP Property Homestead for the purpose of descent and distribution is
denied,” citing, in part, to In re Estate of Wartels, 357 So. 2d 708 (Fla. 1978).
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Walters then appealed the order to this Court. We affirmed the order but
certified to the Florida Supreme Court, as one of great public importance, the
question of whether Wartels had continuing effect. We also certified conflict
with Geraci v. Sunstar EMS, 93 So. 3d 384 (Fla. 2d DCA 2012). See Walters,
288 So. 3d at 1218.
The Florida Supreme Court accepted jurisdiction to review this Court’s
decision. See Walters v. Agency for Health Care Admin., No. SC20-12, 2020
WL 3494393 (Fla. June 29, 2020). While the Florida Supreme Court’s case
was pending, section 719.103(25), which defined the term “Unit,” was
amended, see Ch. 2021-99, § 15, Laws of Fla., to provide as follows:
“Unit” means a part of the cooperative property which is subject
to exclusive use and possession. A unit may be improvements,
land, or land and improvements together, as specified in the
cooperative documents. An interest in a unit is an interest in real
property.
§ 719.103(25), Fla. Stat. (2021) (emphasis added). The only change
between the 2017 version of the statute, which was in effect at the time of
the Decedent’s death, and the amended 2021 version was the addition of
the last sentence: “An interest in a unit is an interest in real property.” §
719.103(25), Fla. Stat. (2021). The Chapter Law enacting the amendment
was signed into law on June 16, 2021, and the Legislature made the
amendment effective July 1, 2021. Ch. 2021-99, § 27, Laws of Fla.
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Following this amendment, on June 23, 2021, the Florida Supreme
Court discharged its jurisdiction and declined review. See Walters v. Agency
for Health Care Admin., No. SC20-12, 2021 WL 2562698 (Fla. June 23,
2021). Thereafter, on June 30, 2021, this Court issued its mandate, which
stated that “such further proceedings be had in said cause as may be in
accordance with the opinion of this Court.”
Walters then filed an amended petition to determine homestead status
of real property and again argued the constitutional homestead exemption
applied to the Cooperative Unit under the 2021 Amendment. The trial court
ruled against Walters:
The Court finds that the change in law regarding cooperative
[units] at section 719.103(25), Florida Statutes (2021), is not
remedial in nature, and is to be applied only prospectively. The
Order Denying Petition for Homestead (DIN 21, filed June 21,
2018) will be upheld.
Walters timely appealed.
ANALYSIS
Courts must proceed cautiously when considering whether a statute
impacting substantive rights applies retroactively. See, e.g., Menendez v.
Progressive Express Ins. Co., 35 So. 3d 873, 875 (Fla. 2010). “The general
rule is that in the absence of clear legislative intent to the contrary, a law
affecting substantive rights, liabilities and duties is presumed to apply
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prospectively.” Metro. Dade Cnty. v. Chase Fed. Hous. Corp., 737 So. 2d
494, 499 (Fla. 1999). But “the presumption against retroactivity is only a
default rule of statutory construction.” Id. at 500. The presumption can be
“rebutted by clear evidence of legislative intent.” Id.
The homestead provisions of the Constitution at issue protect
homestead property from forced sale and bar the owners of homesteaded
property from devising the property away from their spouse or minor children.
See Art. X, § 4(a)(1), Fla. Const. (“There shall be exempt from forced sale
under process of any court, and no judgment, decree or execution shall be
a lien thereon . . . the following property owned by a natural person: . . . a
homestead, if located outside a municipality, to the extent of one hundred
sixty acres of contiguous land and improvements thereon . . . ; or if located
within a municipality, to the extent of one-half acre of contiguous land, upon
which the exemption shall be limited to the residence of the owner or the
owner’s family[.]”); Art. X, § 4(c), Fla. Const. (“The homestead shall not be
subject to devise if the owner is survived by spouse or minor child . . . .”); Art.
X, § 4(b), Fla. Const. (“These exemptions shall inure to the surviving spouse
or heirs of the owner.”).
Thus, the 2021 amendment, to the extent it transforms cooperative
units into real property protected as homestead, impacts the substantive
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rights of diverse parties. The amendment expands the rights of owners and
heirs of such property to be free from forced sale while commensurately
diminishing the rights of their creditors to be paid. As importantly, it expands
the rights of spouses and minor children to inherit while commensurately
diminishing the rights of the owners to freely devise. These impacts on
substantive rights trigger “the presumption against retroactivity.” Metro. Dade
Cnty., 737 So. 2d at 500.
In the face of this presumption, we find little evidence of the
Legislature’s intent that the 2021 amendment should apply retroactively. The
Chapter Law enacting the amendment was signed into law on June 16, 2021,
and the Legislature provided a future effective date: “This act shall take effect
July 1, 2021.” Ch. 2021-99, § 27, Laws of Fla. At no point, either in the text
of the 2021 amendment or in the Chapter Law enacting the amendment,
does the Legislature state the amendment will take effect retroactively.
We acknowledge that the “presumption in favor of prospective
application generally does not apply to ‘remedial’ legislation; rather,
whenever possible, such legislation should be applied to pending cases in
order to fully effectuate the legislation’s intended purpose.” Smiley v. State,
966 So. 2d 330, 334 (Fla. 2007) (quoting Arrow Air, Inc. v. Walsh, 645 So.
2d 422, 424 (Fla. 1994)). But, such statutes are recognized as remedial
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because they relate only “to remedies or modes of procedure, which do not
create new or take away vested rights, but only operate in furtherance of the
remedy or confirmation of rights already existing[.]” Smiley, 966 So. 2d at
334 (quoting City of Lakeland v. Catinella, 129 So. 2d 133, 136 (Fla. 1961)).
At no point, does the Legislature characterize the amendment as remedial
or as a clarification of existing law. Instead, as mentioned above, the 2021
amendment substantively impacts the rights of owners, heirs, and creditors
in terms of forced sale and the rights of owners, spouses, and minor children
of owners in terms of devise.
Finally, we recognize authority exists for the “recent controversy rule”
of interpretation: “When . . . an amendment to a statute is enacted soon after
controversies as to the interpretation of the original act arise, a court may
consider that amendment as a legislative interpretation of the original law
and not as a substantive change thereof.” Lowry v. Parole & Prob. Comm’n,
473 So. 2d 1248, 1250 (Fla. 1985). The sequence of events involving the
issuance of our prior opinion that recognizes this area of the law might be in
flux, our certification to the Supreme Court, the Supreme Court taking
jurisdiction, the Legislature enacting the 2021 amendment directly
addressing the issue, and the Supreme Court discharging its jurisdiction,
admittedly move this case towards the ambit of this rule. However, the
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validity of this rule of interpretation has been called into question by the
Supreme Court and has been rejected by the Second District. See Ham v.
Portfolio Recovery Assocs., LLC, 308 So. 3d 942, 946-47 (Fla. 2020);
Conage v. United States, 346 So. 3d 594, 598-99 (Fla. 2022); State v. Crose,
378 So. 3d 1217, 1244-45 (Fla. 2d DCA 2024) (en banc). In any event, its
application to these facts does not change the result given the substantive
nature of the rights at issue, the Legislature’s directive that the amendment
have a future effective date, and the absence of any indication the
Legislature viewed the amendment as remedial or serving only as a
clarification.
Affirmed.
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