Waiver of Florida Homestead Rights Requires Strict Compliance

Florida’s homestead rules are well known, mainly because of the asset protection a homestead affords, and because of the favorable property tax treatment the State of Florida affords.  In the trusts and estates world, when a married person owns a homestead property, a host of rules apply regarding the ability of the owning spouse to sell, mortgage and to devise the property at death.

What is Florida Homestead?

A Florida resident’s primary residence is treated as homestead property under several Florida laws.  As explained by the Florida Supreme Court in Snyder v. Davis, 699 So.2d 999 (Fla. 1997),

Our constitution protects Florida homesteads in three distinct ways. First, a clause, separate and apart from the homestead provision applicable in this case, provides homesteads with an exemption from taxes.  Second, the homestead provision protects the homestead from forced sale by creditors.  Third, the homestead provision delineates the restrictions a homestead owner faces when attempting to alienate or devise the homestead property.

A married person may not sell, mortgage, or freely devise at death homestead property owned by one of the spouses.  (To be clear, this discussion does not apply in situations where both spouses own the homestead property – in such a situation, the rules regarding joint ownership would be applied in addition to the application of any homestead rules.)

The Florida Constitution, at Article X, section 4(c) provides:

The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse.

During life, the spouse-owner of the homestead property can only mortgage, sell, or gift homestead property only if joined in the instrument by the other spouse.  At death, the homestead property cannot be devised if married or the owner has minor children, but the property may be devised to the spouse if there be no minor children.  So if married without minor children (which if often the case where only one spouse owns the homestead property), the property can be devised entirely to the surviving spouse, or if not, the surviving spouse is given a life estate and all of the descendants of the decedent share in a remainder interest in the homestead property.

Florida Statute Section 732.401(1) provides the preceding rule regarding the life estate and remainder interest:

If not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes.

How Are Homestead Rights in Florida Waived by a Spouse?

The case of Feldman v. Schocket, 3D21-1509 (3rd DCA 2022) provides textbook level guidance for how a spouse may waive (and not waive) homestead rights.  The Decedent directed in her will that her homestead property (not co-owned with her husband) be sold and the proceeds added to the residue.  Clearly, such devise violates the Florida Constitution, because the Decedent was married and therefore the homestead property could not be devised in any fashion except to the surviving spouse, which the will did not do.  But homestead property is subject to waiver, as expressed in several Florida cases.  The Estate argued that the surviving spouse had waived his homestead rights, in the execution of a mortgage, and in the execution of a post-death waiver.

Can Florida Homestead Rights be Waived in a Mortgage?

Of course, if required rules and formalities are followed, Florida homestead rights can be waived in any document, no matter its title.  In the Feldman case, the Decedent mortgaged the property twice, and as required by the Florida Constitution, the spouse joined into the mortgage.  The two mortgage instruments contained identical boilerplate language addressing the spouse’s homestead rights:

Mortgagor, [Schocket], is joining in the execution of this mortgage for the sole purpose of waiving his or her homestead rights under Article X, Section 4 of the Florida Constitution, and shall not be bound by the terms, conditions or warranties contained in this instrument.

The mortgages were notarized, witnessed by two persons, and duly recorded.

Florida law has a detailed statutory provision for waiving spousal rights, as follows:

732.702 Waiver of spousal rights.—
(1) 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. The requirement of witnesses shall be applicable only to contracts, agreements, or waivers signed by Florida residents after the effective date of this law. Any contract, agreement, or waiver executed by a nonresident of Florida, either before or after this law takes effect, is valid in this state if valid when executed under the laws of the state or country where it was executed, whether or not he or she is a Florida resident at the time of death. Unless the waiver provides to the contrary, a waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse, or a complete property settlement entered into after, or in anticipation of, separation, dissolution of marriage, or divorce, is a waiver of all rights to elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate, by the waiving party in the property of the other and a renunciation by the waiving party of all benefits that would otherwise pass to the waiving party from the other by intestate succession or by the provisions of any will executed before the written contract, agreement, or waiver.

(2) Each spouse shall make a fair disclosure to the other of that spouse’s estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage.

The Feldman case held no waiver on two seperate grounds.  First, because the mortgages were executed after the marriage, a waiver of spousal rights required a disclosure of the Decedent’s estate to the waiving spouse.  As the Court held that there had been no disclosure, the Court found the mortgages ineffective to waive homestead rights.

The second ground for holding that the mortgage instruments not a valid waiver of homestead rights was essentially because of the “boilerplate rule.”  As explained:

[n]owhere do the mortgage waivers reference the constitutional prohibition on devise in the event a decedent is survived by a spouse or minor child. Instead, by their plain language, the mortgage waivers were executed for a qualified purpose. Without Schocket’s signature, the mortgages would not constitute a valid lien on the property. See Pitts v. Pastore, 561 So.2d 297, 301 (Fla. 2d DCA 1990). Thus, his signature was necessary to facilitate the constitutionally permissible purpose of “alienat[ing] the homestead by mortgage.” See art. X, § 4(c), Fla. Const.

Further, in Chames v. DeMayo, 972 So.2d 850 (Fla. 2007), echoing the words of this court, Justice Cantero sagaciously cautioned against enforcing boilerplate homestead waivers buried within documents of other legal significance:

[T]he waiver of the homestead exemption will become an everyday part of contract language for everything from the hiring of counsel to purchasing cellular telephone services. The average citizen, who is of course charged with reading the contracts he or she signs . . . often fails to read or understand boilerplate language detailed in consumer purchase contracts, language which the contracts themselves often permit to be modified upon no more than notification in a monthly statement or bill. . . . [S]uch consumers may lose their homes because of a “voluntary divestiture” of their homestead rights for nothing more than failure to pay a telephone bill. This inevitably will result in whittling away this century old constitutional exemption until it becomes little more than a distant memory.

Id. at 862 (alterations in original) (quoting DeMayo v. Chames, 30 Fla.L.Weekly D2692, D2695-96 (Fla. 3d DCA Nov. 30, 2005) (Wells, J., dissenting)).

In this case, the qualified mortgage waivers were buried within documents of other legal significance. Under these circumstances, we conclude, as did the trial court, that the mortgage waivers are procedurally deficient and insufficient to “evince an intent by [Schocket] to waive [his] homestead rights.” Rutherford, 679 So.2d at 330.

Is a Post – Death Waiver of Spousal Homestead Rights Effective?

A few weeks after death, the Personal Representative of the Estate asked the surviving spouse to execute a waiver of homestead rights.  That “waiver” provided as follows:

I, JEFFREY SCHOCKET, herby [sic] waive, any and all right, title, and interest I have in the property . . . . Specifically . . . any rights, title and/or interest that I may have to claim that the aforementioned property is exempt and/or excluded from my wife, Patricia M. Silver’s estate pursuant to Florida Statute §732.401 or Florida Statute §732.4015.

The Court explained three separate and distinct reasons why the post-death waiver was ineffective to waive homestead rights:

Although the post-death spousal waiver contains more expansive language than the mortgage waivers, as indicated previously, it, too, fails for a myriad of reasons. First, as previously noted, despite the fact that it was executed after marriage, it was not accompanied by fair disclosure of Silver’s estate. See § 732.702(2), Fla. Stat. Second, section 732.702(1), Florida Statutes, anticipates that a party will contract with “a present or prospective spouse” or in anticipation of “separation, dissolution of marriage, or divorce.” The statute does not contemplate contracting with a deceased spouse. Third, in placing their imprimatur upon waiver, courts have embraced the legal fiction that a waiver executed before or during marriage is the “legal equivalent of the prior death of the [spouse].” Jacobs v. Jacobs, 633 So.2d 30, 32 (Fla. 5th DCA 1994) (quoting Wadsworth, 564 So.2d at 635); see also In re Slawson’s Est., 41 So.2d 324, 326 (Fla. 1949). This legal fiction removes the constitutional impediment to devising the homestead property. See Jacobs, 633 So.2d at 32; Wadsworth, 564 So.2d at 635. In the absence of a waiver, however, the property passes by operation of law to the surviving spouse upon the death of the decedent. See Rutherford, 679 So.2d at 331. Here, because the mortgage waivers failed, Schocket’s property interest vested upon Silver’s death. Thus, the post-death spousal waiver was too little, too late.

That last point cannot be emphasized enough, as the rule is often overlooked in the administration of estate in Florida:  Florida homestead property vests at the moment of death, if devised or descends to anyone who is an heir at law.  Because the surviving spouse already owned the property at the moment of death (even though no document so stated), only a deed would have been sufficient to transfer the surviving spouse’s interest.

Are Florida Homestead Rights Subject to Disclaimer?

Remember the rule just explained, that homestead vests at death and therefore a waiver could have no effect?  Not true in every case, because a very special type of waiver, known as a “Disclaimer,” can operate to undue the vesting of homestead rights at death.  The Florida Uniform Disclaimer of Property Interests Act, found at Florida Statutes 739.101 et seq., provides detailed rules on disclaiming property from an estate.

Section 739.201(1) provides:

(1) The disclaimer takes effect as of the time the instrument creating the interest becomes irrevocable or, if the interest arose under the law of intestate succession, as of the time of the intestate’s death.

So yes, homestead rights can be disclaimed, if done properly.  Section 739.104 sets forth a portion of what is required for a valid disclaimer:

(3) To be effective, a disclaimer must be in writing, declare the writing as a disclaimer, describe the interest or power disclaimed, and be signed by the person making the disclaimer and witnessed and acknowledged in the manner provided for deeds of real estate to be recorded in this state. In addition, for a disclaimer to be effective, an original of the disclaimer must be delivered or filed in the manner provided in s. 739.301.

In order to qualify as a disclaimer, the instrument must be “acknowledged in the manner provided for deeds of real estate to be recorded in this state.”  Section 695.03 provides as follows:

695.03 Acknowledgment and proof; validation of certain acknowledgments; legalization or authentication before foreign officials.—To entitle any instrument concerning real property to be recorded, the execution must be acknowledged by the party executing it, proved by a subscribing witness to it, or legalized or authenticated in one of the following forms:

(1) WITHIN THIS STATE.—An acknowledgment or a proof may be taken, administered, or made within this state by or before a judge, clerk, or deputy clerk of any court; a United States commissioner or magistrate; or any notary public or civil-law notary of this state, and the certificate of acknowledgment or proof must be under the seal of the court or officer, as the case may be.

Section 739.301, regarding the delivery or filing requirement provides:

(2) In the case of a disclaimer of an interest created under the law of intestate succession or an interest created by will, other than an interest in a testamentary trust:

(a) The disclaimer must be delivered to the personal representative of the decedent’s estate; or

(b) If no personal representative is serving when the disclaimer is sought to be delivered, the disclaimer must be filed with the clerk of the court in any county where venue of administration would be proper.

The Feldman Court explained why the waiver in the case could not operate as a valid disclaimer:

Critically, the waiver is not statutorily compliant. It does not purport to be a disclaimer, it was not acknowledged before “a judge, clerk, or deputy clerk of any court; a United States commissioner or magistrate; or any notary public or civil-law notary of this state,” and it was not recorded. § 695.03(1), Fla. Stat.; see § 739.104(3), Fla. Stat.; § 695.26(1), Fla. Stat. (2022). The disclaimer statute makes no provision for partial compliance.

The ruling in the Feldman decision may seem a little hypertechnical at first, but perhaps not really.  The estate was arguing that the surviving spouse gave up his valuable homestead rights for nothing in return.  For persons to give up their homestead rights, such an act must be obvious, not buried in boilerplate language in a complex and lengthy document.  And the surviving spouse explained how he viewed the post-death waiver document:

According to Schocket, Feldman informed him that signing the document would enable the Estate to “pay the bills to maintain the house” and allow Feldman to serve as executor. Schocket attested he “didn’t read the document” and “wasn’t aware of [his] rights or interest in the property at that time.”…

So the Court’s strict enforcement of the highly technical disclaimer statute is for a reason, in that people do not read or understand documents they are asked to sign.  The requirements of the formalities of witnesses, a notary, having the disclaimed property effectively identified, and the delivery requirements, these all serve to place the disclaiming person on notice that something important is taking place, and perhaps caution should be exercised.

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

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