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STATEMENT OF THE FACTS

Robert M. Levine died testate on April 1, 2003. He was survived by two

children, Joseph Levine and David Levine (a minor). At the time of his death,

Robert resided in a cooperative apartment ("the Co-op"). In his will, Robert

devised the Co-op to a third party.

Joseph and David brought petitions to determine homestead, arguing that the

Co-op was homestead property and was not subject to devise pursuant to Article X,

Section 4(c) of the Florida Constitution, which declares that "homestead shall not

be subject to devise if the owner is survived by the spouse or a minor child." Thus,

Joseph and David argued that the Co-op passed to them outside the estate as a

matter of law, and the bequest to the third party failed.

The trial court denied the petitions, and Joseph and David appealed.

Adhering to this Court's decision in In Re: Estate of Wartels v. Wartels, 357 So. 2d

708 (Fla. 1978), the district court affirmed, but certified express and direct conflict

between its decision and Wartels on the one hand, and Southern Walls, Inc. v.

Stilwell Corp., 810 So. 2d 566 (Fla. 5th DCA), rev. denied, 829 So. 2d 919 (Fla.

2002), on the other hand. In addition, the district court certified the following two

questions as questions of great public importance:

FTL:2221415:1

1

RUDEN, McCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A.

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