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Thursday, July 12, 2018

A Safe Harbor for Waiver-by-Deed of Spousal Homestead Interests [Florida]

Under the Florida Constitution, a decedent owner of Florida homestead property with a surviving spouse can only devise that property to the surviving spouse (although if there are surviving minor children then no devise can be made at all). Fla.Stats. §732.702 allows for written waivers of homestead rights by spouses. That statute requires “fair disclosure” of assets be made if the waiver occurs after marriage.

Recent case law, most notably Stone v. Stone, 157 So.3d 295 (4th DCA 2014) allowed a deed from a spouse to constitute a waiver for this purpose. The correctness and scope of this decision have been debated by practitioners.

By reason of Stone and other decisions, Florida has enacted Fla.Stats. §732.7025 (effective on July 1 of this year) that provides a safe harbor method of having a spousal waiver-by-deed. If a spouse enters into a deed that has specific statutory language, then the deed will constitute a valid waiver of spousal homestead rights for descent and distribution purposes (but not for creditor protection purposes or for purposes of avoiding spousal joinder on inter vivos transfers of homestead).

For those with an interest, I have a more extended commentary in the Waiver section of my treatise, Rubin on Florida Homestead (www.rubinonfloridahomestead.com). This commentary addresses whether fair disclosure is still needed, the “safe harbor” nature of the new provision, the effect of such a waiver, and the question whether the new statute applies if the deeding spouse has no legal or equitable interest in the homestead. If of interest, you can download a copy of that Section from Microsoft OneDrive at this link: https://1drv.ms/b/s!AvIWUWY7Se4ogaUrVjPseSkvCL9yvQ
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