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Can a Spouse Waiver Their Homestead Rights Under the Florida Constitution?


While Florida residents are generally free to distribute their property as they wish through a will or trust, there are some notable exceptions. For example, if a person is married, they are not allowed to “devise” their primary residence to someone other than their spouse. This is known as “homestead rights” and it is actually a requirement of the Florida Constitution.

Now, a spouse can knowingly waive their homestead rights, thus freeing the other spouse to give the homestead through their will or trust like any other property. The waiver must be in writing and signed in the presence of at least two witnesses. Such waivers are often accomplished through a prenuptial or post-nuptial agreement. But it may also be a simple waiver signed by one spouse outside of a formal contract.

Florida Appeals Court: Warranty Deed Not a Sufficient Waiver of Spouse’s Rights

Since a spouse’s homestead rights are constitutional in nature, Florida courts must be satisfied that a purported waiver clearly shows that a spouse meant to waive their rights. A recent Florida appeals court decision, Thayer v. Hawthorn, provides a useful case in point. Here, the appellate court overturned a judge’s finding that a spouse had waived her rights by signing a warranty deed involving the homestead property.

The husband and wife married in 1978. The wife was originally the sole owner of the homestead property. In 1987, she signed a deed granting the homestead to her and the spouse as joint tenants with rights of survivorship. In 2002, each spouse created a separate trust as part of their estate plan. At that time, they signed a warranty deed conveying a one-half interest to each of their separate trusts. The wife’s trust said that upon her death, the trust’s assets would go to her children from a prior relationship. The husband’s trust, as later amended, provided that 70 percent of the assets would go to his brother after the husband’s death, with the remaining 30 percent to the wife’s children.

The husband disappeared in July 2014. He was last seen in Jupiter, Florida. A Florida court declared him presumptively dead in 2017. The wife passed away the next year.

Following the wife’s death, the husband’s brother filed a petition to determine the status of the homestead property. Remember, under the husband’s trust, 70 percent of the remaining assets went to the brother. The brother argued that the warranty deed signed as part of the 2002 estate plan effectively constituted a waiver of the wife’s homestead rights following her husband’s presumed death. So he was entitled to 70 percent of the value of the house.

The wife’s children objected. They argued the warranty deed did not satisfy the Florida constitution’s requirements to waive the wife’s homestead rights. The trial court agreed with the brother. The Florida Fourth District Court of Appeal, however, agreed with the children.

The Fourth District said there was nothing in the language of the warranty deed that expressly released either spouse’s rights to inherit the property. And even if that was the intent of their estate plan, as their estate planning lawyer suggested, that was insufficient. The Florida Constitution required a written waiver.

Contact a Florida Trust Litigation Attorney Today

Estate planning is meant to reduce the chances for disputes between potential heirs and beneficiaries. But even the best-laid plans can sometimes lead to litigation. If you are involved in such a dispute and need legal advice and representation from a qualified Pompano Beach estate and trust litigation lawyer, contact Mark R. Manceri, P.A., today to schedule a consultation.



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