Homestead Waiver – Florida Homestead Can Be Waived By Deed

The Florida homestead exemption is a constitutional privilege that restricts the taxation, sale, and inheritance of a person’s primary residence in Florida. This homestead exemption can be waived through a properly prepared document. This article discusses how execution of a duly witnessed deed conveying all rights to property creates a homestead waiver under Florida law. If you have any questions about homestead declarations, homestead properties, homestead exemptions, and homestead waivers, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

Under Florida law, the meaning of “homestead” depends on the context in which it is used: (1) exemption from ad valorem taxation, (2) protection from forced sale by creditors, and (3) limitations on alienation and devise. Stone v. Stone, 157 So. 3d 295, 304 (Fla. 4th DCA 2014). All three of these homestead privileges are limited. Florida law on homestead property provides that spouses and courts cannot extend constitutional homestead beyond the scope expressly provided in statute and case law. City Nat’l Bank of Fla. v. Tescher, 578 So. 2d 701, 703 (Fla. 1991) (holding husband waived homestead rights in documented he executed after marriage). One must have the legal right to permanently reside in Florida to claim homestead rights here. See, e.g., Garcia v. Andonie, 101 So. 3d 339, 348 (Fla. 2012) (holding those who do not have legal right to reside permanently in Florida are not eligible for homestead exemption). Further, Florida Statutes § 732.702 provides that a spouse waives his or her homestead rights through a written document, signed by two subscribing witnesses, containing a waiver of “all rights,” or equivalent language. § 732.702, Fla. Stat. (2015).

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When a spouse issues a deed conveying away all the estate, right, interest, equity and claim in real property, the spouse waives his or her homestead rights. Stone v. Stone, 157 So. 3d 295, 304 (Fla. 4th DCA 2014). (holding “[w]e agree with the trial court that this constituted a waiver of any constitutional homestead rights”). As stated in Stone v. Stone, 157 So. 3d 295 (Fla. 4th DCA 2014):

“Section 732.702, Florida Statutes, provides in part, that “[t]he rights of a surviving spouse to . . . homestead . . . may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving paryt in the presence of two subscribing witnesses.” § 732.702(1), Fla. Stat. (2011). Further, “[u]nless the waiver provides to the contrary, a waiver of ‘all rights,’ or equivalent language” may constitute a waiver of all homestead rights that would otherwise pass to the waiving spouse by intestate succession. Id. The deed [the wife] executed on March 27, 2000, provided that she “grants, bargains, sells, aliens, remises, releases, conveys, and confirms” the property “together with all the tenements, hereditaments, and appurtenances thereto belonging or in anywise pertaining.” We agree with the trial court that this constituted a waiver of any constitutional homestead rights [the wife] had in [the husband’s] one-half interest in the property.”

Stone v. Stone, 157 So. 3d at 304 (emphasis added).

This homestead waiver occurs even where the spouse conveys the property to his or her own trust. Id. This waiver occurs even where the spouses continue to claim a homestead exemption from taxation on the property while only one spouse resides at the property. Id. (“the fact that [wife] continued to claim a homestead exemption from ad valorem taxation does not affect our finding that she waived her homestead rights in [husband’s] one-half interest in the property for the purpose of the constitutional homestead devise restriction.”). Additionally, an adult child cannot seek protection under the constitutional homestead devise restrictions after his or her parent has waived homestead rights in a deed, as the parent’s waiver binds the child. Id.

Under the above statute and case law, property is and can be devised free of any homestead restriction after homestead release-by-deed. Id. at 305. This makes sense given that the express waiver of homestead rights is the legal equivalent of predeceasing one’s spouse, for purposes of the constitutional restriction on devise of homestead. Tescher, 578 So. 2d at 703 (“The spouse’s antenuptial waiver of rights in the homestead is the legal equivalent of predeceasing the decedent, for [constitutional] purposes”). If you have any questions about homestead declarations, homestead properties, homestead exemptions, and homestead waivers, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

Bernhard Law Firm

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