Homestead spouse waiver
- Sep 5, 2018
- 2 min read
Updated: Jun 27
I had a buyer who had the property in a trust set up under his wife. He was not included at all in the trust and didn't understand why he was required to sign any contracts (listing, sales, etc) related to that property. They needed to sign off on property related contracts because In Florida, when a married couple purchases property, they have homestead rights to the property after the other's death. --Under Florida law a surviving spouse’s rights in the couple’s marital homestead residence are spelled out in Art. X, § 4(c) of the Florida Constitution, and F.S. 732.401--.
Because they have legal rights to the property, they must sign off on contractual commitments related to that property. Starting in 2018, there is now a waiver provision that is available to married couples who may not wish to have the property convey to the other spouse at death.
This may be of interest to buyers in situations such as having children from a previous marriage that you spouse wishes to have convey to children from that marriage. In these cases, the spouse has the ability to waive their homestead rights to that property as part of the deed. Effective July 1, 2018, any deeds conveying the homestead that is executed by one spouse to the other, must contain the following statement if the parties are intending that the deed waive the spouse's homestead rights in the property after death:
"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."
With this language on the deed, it clarifies that the grantor spouse intends to waive the homestead rights that spouse has in the homestead when the grantee spouse dies. For example, currently, if the homestead is held only in the name of the husband at his death, the wife may elect to take a half interest in the property together with the children; alternatively, the wife automatically receives a life estate in the property with the remainder to the children.
However, if this clause is in the deed after July 1, 2018, the wife can convey her interest in the homestead to her husband via deed prior to his death so that it is solely in his name; and it's clear that she's waiving her right to own a half interest or at least a life estate in the property automatically when he dies.
The law clarifies that such a waiver by deed does not waive the homestead protection against creditor's claims during and after the owner's death, however. Further, even if such a deed is recorded with this statement on it, the other spouse whose name is no longer on title is still required to sign any future mortgages or deeds for them to be effective against the spouse whose name is omitted.
Here are some additional resources:
Collier County. Consumer Protection https://www.floridabar.org/public/consumer/tip006/
Florida Constitution Fla. Const. art. X, §4(a).http://www.leg.state.fl.us/statutes/index.cfm?submenu=3#A10S04
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