As a Florida real estate attorney, one topic that I am commonly asked about is homestead. One question frequently asked by clients is:
Is it possible for their spouse to waive his/her homestead rights? If so, how?”
Why Would a Spouse Waive Homestead Rights?
More often than not, one spouse has already provided for the other spouse through their estate planning documents, insurance policies, or payable on death accounts and would like to devise their homestead per their testamentary wishes.
The issue here arises from the fact that the Florida Constitution restricts either spouses’ ability to devise their homestead in their will. For example, if Spouse A wants to leave his homestead to his brother (instead of his spouse), he cannot leave his homestead to his brother in his will if he is survived by his spouse or minor child.
So what then happens when Spouse A has no minor children, and Spouse B wants to waive his/her rights in the homestead?
Florida Senate Bill 512
Before the 2018 Florida legislative session, either spouse could waive their various spousal rights pursuant to 732.702 which provides:
The rights of a surviving spouse to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate or any of those rights, may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses.”
In other words, either spouse can waive their spousal rights via contract. Often, this is accomplished via a prenuptial or post-nuptial agreement where one or both spouses waive their homestead rights, rights to alimony, etc.
During the 2018 Legislative session, the Florida Legislature created a new option relating to waiver of homestead rights by passing SB 512 which added section 732.7025 to the Florida Statutes. Section 732.7025 established a simple way to waive homestead rights by executing a deed that contains specific language provided by the statute.
Waiver of Homestead Rights Through Deed
The new statute provides that a spouse waives his or her right as a surviving spouse with respect to the devise restrictions (such as through a will) under s. 4(c), Article X of the Florida Constitution when specific language is included in a deed.
For example, if Spouse B wanted to allow Spouse A to devise their homestead through Spouse A’s will, then he could execute a deed from himself to Spouse A that contained the following language:
“By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse from devising the homestead property described in this deed to someone other than me.”
Keep in mind that executing a deed with the above language does not waive the creditor protections afforded by homestead nor does it waive the requirement of spousal joinder in any deed selling homestead property to a third-party. Simply stated, if Spouse B executes a deed to Spouse A with the above-referenced language, then Spouse B is only waiving the devise restrictions provided by the Florida Constitution. As a result, Spouse A could not sell the homestead to a third party without Spouse B’s signature on the deed.
As with all real estate matters, please consult with your attorney. If you have any questions regarding homestead and homestead rights, please contact us at 239-344-1100.