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Wednesday
Apr182018

Waiving Spousal Homestead Rights in a Deed

The Florida Legislature has passed, and the Governor has signed, a new law (Section 732.7025, Florida Statutes) that will make it easier for spouses to waive their homestead rights via a deed of the homestead property to the other spouse. 

Effective July 1, 2018, any deeds conveying the homestead that is executed by one spouse to the other, must contain the following statement if the parties are intending that the deed waive the spouse's homestead rights in the property after death:

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.

With this language on the deed, it clarifies that the grantor spouse intends to waive the homestead rights that spouse has in the homestead when the grantee spouse dies.

For example, currently, if the homestead is held only in the name of the husband at his death, the wife may elect to take a half interest in the property together with the children; alternatively, the wife automatically receives a life estate in the property with the remainder to the children. However, if this clause is in the deed after July 1, 2018, the wife can convey her interest in the homestead to her husband via deed prior to his death so that it is solely in his name; and it's clear that she's waiving her right to own a half interest or at least a life estate in the property automatically when he dies.

The law clarifies that such a waiver by deed does not waive the homestead protection against creditor's claims during and after the owner's death, however. Further, even if such a deed is recorded with this statement on it, the other spouse whose name is no longer on title is still required to sign any future mortgages or deeds for them to be effective against the spouse whose name is omitted.

This begs the question: If a spouse has already conveyed his interest in the homestead solely to his spouse, should a new deed be created and recorded after July 1, 2018, to ensure that their wishes are carried out at death?