Can a Spouse waive Homestead rights in Florida?
- A spouse waives his or her rights as a surviving spouse with respect to the devise restrictions under s. 4(c), Art. X of the State Constitution if the following or substantially similar language is included in a deed:
- “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.”
There has been a fair amount of questions in response to the new Senate Bill 512 and how this can affect waving your homestead rights. Here is some background and how this Bill may benefit you.
Before 2018 Florida legislative session, either spouse could waive various spousal rights pursuant to 737.702, which states;
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.”
This now means that a spouse can waive their spousal rights through a contract. This type of waiver is usually done by a prenuptial or postnuptial agreement where both spouses would waive their homestead rights. During the 2018 Legislative session, the Florida Legislative created a new option to waive homestead rights known as Senate Bill 512.Senate Bill 512 came into effect July 1, 2018, which focuses on Homestead waiver, which provides language that can be used to waive spousal homestead rights through a deed. This authorizes a surviving spouse the option to waive, wholly or partly, certain estate allowances, which can include homestead by a written contract.
This Bill has provided spouses the option to waive his or her rights as a surviving spouse concerning devise restrictions contained in the Florida Constitution if certain language, or similar language, is included in the deed.
It is essential to understand that this is not a waiver of protection against claims of owner’s creditors during the owner’s lifetime and after death. Also, the language is not a waiver of restrictions against alienation by mortgage, sale, gift, or deed without the joinder of the owner’s spouse.
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