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Florida Homestead Safeharbor and Spousal Waiver Changes

Surviving spouses have robust inheritance rights in pretty much any jurisdiction, but in Florida those rights are especially strong.  Whether or not a decedent spouse leaves a will—and even if a will expressly disinherits the other spouse—a widowed spouse retains legal rights in at least a portion of a decedent spouse’s estate.  In many cases, these kinds of spousal rights protect surviving spouses, but they can also throw a monkey wrench into an estate plan if not taken into account ahead of time.  So, when planning a Florida estate, it’s vital to know which spousal rights are in play and how they should be addressed if an estate plan is to function properly. One major place to look for these spousal rights is in whether there is a Florida homestead and spousal waiver issue.

Spousal Homestead Inheritance Protections Under Florida Law

If a decedent spouse dies intestate (i.e., without a will), the widow or widower inherits the decedent’s entire estate—except if either has children from a prior marriage, in which case the spouse receives a fifty-percent share.  As a result, a surviving spouse receives either all or half of a completely unplanned estate.  That could be what you want, or it might not be.  But, either way, that’s the jumping-off point in Florida if you haven’t started planning your estate.

The above intestate succession rules only apply when a decedent fails to leave a will.  Absent some statutory limitation, a testator (i.e., the person making a will) generally has the right to bequeath estate assets pretty much however he or she pleases.  By itself, that could potentially mean using a Florida last will to divest your spouse of any rights whatsoever in your estate.  However, Florida law includes a restriction—the spousal elective share in Florida—that prevents testators from completely disinheriting a surviving spouse.

The purpose of an elective share is to provide surviving spouses some means of support by ensuring a claim to a portion of a decedent’s estate.  Under the Florida statute, a widowed spouse is guaranteed at least a thirty-percent share. So, even if a decedent spouse left a will that expressly excludes his or her spouse from receiving any wealth from the estate, Florida law overrides the terms of the will and gives just shy of one-third of the decedent’s wealth to the surviving spouse.

The elective share can’t be sidestepped by using non-probate transfers because the “estate” used to calculate the thirty-percent share includes more than just probate assets.  The guaranteed spousal share also attaches to assets held in a Florida living trust or which transfer through titling a Florida asset with a right of survivorship—or as a Florida account with a POD (“pay on death”) or TOD (“transfer on death”) designation.

When it comes to real estate serving as a homestead, Florida’s spousal protections are even stronger.  Florida’s Homestead Act, which is part of the state’s Constitution, prevents a married testator from devising a homestead to anyone but the testator’s surviving spouse.  Notwithstanding any provision of a will to the contrary, a surviving spouse is presumed to inherit the homestead in full if the decedent had no children.  If the testator does have children, the spousal homestead rights in Florida with surviving children and a surviving spouse is a life estate in the homestead for the spouse with the children receiving the remainder, or a fifty-percent interest in the property to the spouse held as a tenancy in common (50%) with the surviving kids.

On top of that, during life, a married homeowner is barred from transferring or mortgaging a homestead without the express consent of his or her spouse.  And, importantly, the spousal rights provided by Florida’s Homestead Act are effective even if the spouse is not a legal owner of the property.  So, even if only one of their names is on the deed, both spouses must agree before a homestead property can be mortgaged, sold, or otherwise transferred.

Needless to say, Florida’s spousal protections, though well-intentioned, can raise some pretty thorny estate-planning issues—particularly when one spouse brings `substantial wealth into the marriage and has heirs who are not the heirs of the other spouse.  Those issues, though, can be easily addressed with careful planning, as Florida law recognizes waivers of both the elective share and spousal rights under the Homestead Act.

Florida Homestead and Spousal Waiver Rights in Florida

Under the Florida Probate Code, a spouse is permitted to waive or partially waive the spousal rights provided by the Homestead Act and elective share (among other things).  A waiver might be necessary to make an estate plan function properly, to protect the interests of a spouse’s natural heirs, or to ensure a business’s management continuity.  Or, in some situations, a spousal waiver may be appropriate as a matter of fundamental fairness.

To be effective, a waiver must be written, signed by the waiving spouse, and attested by two witnesses.  As with most contracts, a waiver cannot be made under duress or coercion, and the waiving spouse must be competent when making it. Unlike most contracts, though, a waiver doesn’t need to be supported by any consideration.   A global waiver of “all rights” in the other spouse’s estate and assets is sufficient to waive both homestead and elective share rights, regardless of whether the waiving spouse received anything in return for relinquishing the rights.

If a spousal waiver is executed after marriage, the non-waiving spouse has an obligation to disclose the extent of his or her estate to the waiving spouse—that is, disclose what assets are potentially subject to the waiver.  If executed as part of a prenuptial agreement, no such disclosure is necessary.

A waiver typically come in the form of a written agreement between the two spouses, which can be entered into prior to the marriage (as with a prenuptial agreement) or afterwards.  However, Florida law now offers a simplified method for waiving spousal inheritance rights in a homestead via “safe harbor” language built into the deed of a homestead property.

Florida’s Safe Harbor for Homestead Waivers

Effective beginning in 2018, the Florida legislature amended the Probate Code to provide a simple mechanism for Florida homestead and spousal waiver by inserting simple language into the deed of the property.  Basically, the waiving spouse is authorizing the other spouse to devise the property to whichever heirs the property-owner spouse deems appropriate.  And the Homestead Act’s restriction against devising a homestead to anyone but the spouse is rendered ineffective.

Critically, the safe harbor waiver, as it concerns only the Florida homestead and spousal waiver, operates as to inheritance rights in the homestead only.  It does not have any effect on a spouse’s right to object to transfers or mortgages of the property during life—or to a spouse’s right to the statutory elective share.  Thus, a spouse could theoretically waive the right to inherit fifty percent of a homestead by deed but still retain the right to a thirty percent elective share in a decedent spouse’s expanded estate.  A safe harbor waiver also doesn’t impede either spouse’s protections from creditor claims against the homestead.

It’s worth noting, concerning the Florida homestead and spousal waiver issue, that the safe harbor language doesn’t allow waiver of any rights that couldn’t be waived before.  What the safe harbor statute does is create a simple, failsafe way to waive homestead inheritance rights within a deed to the property itself, rather than through an independent agreement between the spouses.  A waiver also doesn’t mean that the homeowner spouse cannot still devise the property to the spouse who executed the waiver; it just allows for more flexibility.  A homestead waiver could also be included in a Florida prenuptial or postnuptial agreement.

The safe harbor language, as enacted by the Florida legislature at Fla. Stat. §732.7025(1), is as follows:

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.

If you have questions or need advice relating to Florida’s statutory spousal protections, waivers, or other estate-planning issues, you should consult with an experienced Florida estate-planning attorney.

Steve Gibbs, Esq.

12 comments… add one
  • Rita June 2, 2020, 1:54 pm

    Does a prenaptual agreement protect homestead property from a surviving spouse?

  • gibbslawfl June 4, 2020, 3:41 pm

    Hi Rita, thanks for commenting. Done properly with a homestead waiver, the short answer is yes it would. This isn’t cut and dry, a trust or will could override it depending on how the nuptial agreement reads.

    Best, Steve Gibbs, Esq.

  • Victoria October 19, 2020, 6:44 pm

    Hello and thanks for this article.

    If homestead rights are waived properly in a post-nup, pursuant to 732.702, is a separate quit claim deed also required as per 732.7025 before a title company will allow the property to be encumbered, even years after the decedent has passed?

  • gibbslawfl October 21, 2020, 12:47 pm

    Hello Victoria, in general if the post-nup is properly done, it would be a valid waiver. The deed probably not required in this scenario but may be insisted upon by a title company in any event.

    I hope this helps.

    Best, Steve Gibbs, Esq.

  • Richard Cardozo December 14, 2020, 9:19 am

    Dear Sir, I was reading your article on Homestead decedent’s estate and thought you can help me. My dad died without a will and left his spouse and 3 sons from first marriage and one grandchild.He and his spouse purchased home together and deeded in both names. His spouse redeeded home in her son’s name.from another marriage and took a life estate where her son is remainderman. Her son was never adopted by my dad. Can you say whether the deceased lineal descendants get any right to the estate?. To mention that his spouse passed away five years ago and her son sold the property and pocket everything. Please contact me on this. Thanking you. Richard Cardozo.

  • gibbslawfl January 12, 2021, 4:17 pm

    Hi Richard, if you need a consultation please reach out to Gene at info@gibbslawfl.com with your contact information as it was deleted for confidentiality reasons. As far as your questions, I think it is problematic to offer an opinion without reviewing the deeds.

    Best, Steve Gibbs, Esq.

  • Jae Mack February 11, 2021, 2:35 pm

    I plan to marry and own a home and property FL where we will live. My future spouse is willing to waive his homestead Rights and Elective Share in our prenup agreement. If I do pass first, how do I make sure he can live in the home until he either passes on or can no longer remain in the home due to health issues.

  • gibbslawfl February 18, 2021, 1:27 pm

    Hello Jae, to do this right (meaning so that it is enforceable), most likely the best option will be to put the real property in a trust created individually (non-joint) which properly references the prenup (assuming the prenup is enforceable). This is a sophisticated thing that should be handled by professionals because of the sensitivity of FL homestead laws. So the trust needs to be technically drafted to grant a right to live in the home under specific circumstances. Prenups are also notoriously difficult to prepare and enforce properly in FL. Let us know if we can help by connecting at info@gibbslawfl.com.

    Best, Steve Gibbs, Esq.

  • Donna Lafferty March 17, 2021, 3:55 pm

    I am getting divorced in New Jersey and prior to finalizing divorce, I am purchasing property in Florida and the other spouse refuses to sign the required paperwork for mortgage. If this verbiage is included in a motion signed by a judge and by the spouse, will that suffice? i.e. even though it is not the exact document required in Florida but the intent is the same, will that be accepted? Thanks, Donna

  • gibbslawfl March 20, 2021, 11:22 am

    Hello Donna, this is a complicated question that would be better addressed by a FL divorce attorney in cooperation with your NJ divorce attorney. Just for educational/discussion purposes, it would seem to be complicated and perhaps unwise to be purchasing real property before a divorce is finalized. You may be correct that if the court order specifies what can be done, it could be effective. However, everything often hinges upon the final divorce decree or marital settlement agreement. Again, not my expertise.

    Best to you.

    Steve Gibbs, Esq.

  • David B September 5, 2021, 8:28 am

    Could a properly executed quit claim deed (notarized with 2 witness signatures) made to the grantor and his/her heirs forever, serve as a valid spousal waiver of homestead?

  • gibbslawfl September 7, 2021, 2:50 pm

    Hello David, fair question and I would say likely not, as a homestead waiver should likely be more specific. Let us know if we can help.

    Best, Steve Gibbs, Esq.