PROBATE CORNER
PROBATE CORNER
Issue : Spouse ’ s Waiver of Homestead Post-Stone
DAVID M . GARTEN
In Thayer v . Hawthorn , 2023 Fla . App . LEXIS 2433 , 2023 WL 2903993 ( Fla . 4th DCA April 12 , 2023 ), as part of estate planning , Doris and James executed a warranty deed conveying one-half of the property to each of their revocable trusts . The deed contained the following operative words of conveyance : that grantor “ has granted , bargained and sold to the said grantee , and grantee ' s heirs and assigns forever …”. The trial court found that Doris had waived her homestead rights to her husband ' s one-half interest when she executed a warranty deed conveying the property to herself and her husband as tenants in common . The appellate court , in reversing the trial court , reasoned :
The Florida Constitution provides that a homestead is generally not devisable :
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 . If the owner or spouse is incompetent , the method of alienation or encumbrance shall be as provided by law .
Art . X , § 4 ( c ), Fla . Const . However , Florida law allows spouses to waive all types of spousal rights , including rights to the homestead . Section 732.702 ( 1 ), F . S . provides :
The rights of a surviving spouse to . . . homestead . . . , 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 . . . . 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 . . . , is a waiver of all rights to . . . homestead . . . , 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 .
The trial court relied on Stone v . Stone , 157 So . 3d 295 ( Fla . 4th DCA 2014 ) to conclude that the warranty deed was sufficient to waive homestead rights . Stone , however , is distinguishable . In Stone , as in this case , spouses had transferred their homestead to themselves as tenants in common and subsequently transferred their interests into their own trusts . The deed ' s language splitting the property into tenancy in common interests stated that the spouse " grants , bargains , sells , aliens , remises , releases , conveys , and confirms " the property " together with all the tenements , hereditaments , and appurtenances thereto belonging or in anywise appertaining ." ( emphasis added ). Without citation , this court concluded that this language was sufficient to waive homestead
While one may question whether the language in Stone was sufficiently specific to waive homestead , it is still more specific than the deed ' s language in this case . The Stone deed released the property and also conveyed the property " together with all … hereditaments ." A hereditament is "[ a ] ny property that can be inherited ; anything that passes by intestacy ." Hereditament , Black ' s Law Dictionary ( 11th ed . 2019 ). The language thus conveyed the spouse ' s inheritance interest in the property , and this would include her constitutional right to the inheritance of the homestead . Moreover , the deed released the spouse ' s rights in the property . The warranty deed here contains no language of release or of conveyance of a hereditament . The grantor simply " granted , bargained and sold " the property to the grantee . This is insufficient to constitute a written waiver of homestead rights as required by section 732.702 ( 1 ).
Stone generated concern as to what language in a deed would constitute a waiver of homestead rights . See Jeffrey S . Goethe & Jeffrey A . Baskies , Homestead Planning Under Florida ' s New " Safe Harbor " Statute , 93 Fla . B . J . 36 ( May / June 2019 ). To provide guidance , the Legislature enacted § 732.7025 , F . S . ( 2018 ), providing that a deed containing certain language would constitute a waiver of the homestead rights : “( 1 ) A spouse waives his or her rights as a surviving spouse with respect to the devise restrictions under s . 4 ( c ), Art . X of the State Constitution if the following or substantially similar language is included in a deed : 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 ."
While this statutory provision does not apply in this case , it is illustrative of the point that language waiving a constitutional right must be able to be clearly understood as waiving the right .
( Continued on next page )
PBCBA BAR BULLETIN 13