PROBATE CORNER
PROBATE CORNER
Issue : Spouse ’ s Waiver of Homestead Post-Stone ( Continued )
DAVID M . GARTEN
Similarly , in Merli v . Merli , 332 So . 3d 1020 ( Fla . 4th DCA 2022 ), in discussing the waiver of rights in a marital settlement agreement , we stated , "[ p ] ursuant to the plain language of section 732.702 and the partial marital settlement agreement , neither the decedent nor the wife explicitly waived their right to an elective share , intestate share , pretermitted share , homestead , exempt property , family allowance , or preference as personal representative ." Id . at 1022 ( emphasis added ). Here , James and Doris ' warranty deed does not contain language clearly evincing a waiver of the homestead right .
Because the statute requires that a spouse execute a written waiver in front of subscribing witnesses , and we have concluded that the deed is not a waiver , external evidence such as the estate planning attorney ' s testimony cannot correct the deed . The statute requires the waiver to be in writing . Allowing parol evidence to supplement the writing not only would violate the statute , but it would also wreak havoc on land transfers . If one could go behind a deed to determine whether homestead protection had been waived , title examiners could not rely on the recorded deeds to determine whether or not interests remained in property . That , of course , is why the Legislature provided definitive waiver language for inclusion in deeds as a " safe harbor " for conveyances of homestead .
Conclusion : The Florida Constitution protects the homestead upon the death of an owner by precluding its devise when there is a spouse . Homestead rights may be waived in accordance with the statutory provisions of § 732.702 ( 1 ), F . S . In this case , we conclude the warranty deed did not waive homestead , because it lacked language specifically releasing inheritance rights .