F.S. §732.702 provides a statutory procedure for waiving spousal rights, including homestead rights, under written contracts, agreements, or waivers. New F.S. §732.7025 provides a simplified method for a spouse to waive his or her homestead rights in a deed. It is intended to provide a “safe harbor” for the waiver of spousal homestead rights through a deed (with specially drafted language included in the deed). The new statute relates solely to the waiver of a spouse’s inheritance rights as to homestead property and does not result in the waiver of homestead asset protection rights, restrictions on lifetime alienation or other spousal inheritance rights, such as elective share. The legislation is the product of study and analysis of the Homestead Issues Study Committee of the Real Property, Probate and Trust Law Section of The Florida Bar.
The safe harbor language in §732.7025(1) is simple and straight-forward: “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.”
The new statute also confirms that a waiver of one homestead right is not a waiver of other protections:
The waiver language in subsection (1) may not be considered a waiver of the protection against the owner’s creditor claims during the owner’s lifetime and after death. Such language may not be considered a waiver of the restrictions against alienation by mortgage, sale, gift or deed without the joinder of the owner’s spouse.
The new legislation became effective July 1, 2018. The history of homestead waivers and the ramifications of a waiver of constitutional rights are not simple. This article attempts to preserve the high level of caution and respect that should be present in any transaction involving constitutional homestead rights.
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