Bulletin: FL2018005

Dear Associates:

A new law that allows an individual to waive their constitutional right to inherit their spouse’s homestead takes effect July 1, 2018. Newly created Section 732.7025, Florida Statutes, provides that a spouse waives their rights as a surviving spouse 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.”

Three other matters regarding the new law should be highlighted:

1. The right of a minor child to inherit the homestead may not be waived. This means even if a spouse waives their right to the homestead in a deed under the new statute, the rights of any minor children cannot be waived.  

2. A spousal waiver will not be considered a waiver of the protection to homestead property against creditor’s claims during the owner’s lifetime and after death.

3. A spousal waiver does not affect the constitutional requirement that an individual not in title join in the execution of a deed or mortgage of their spouse’s homestead property. This is important to remember because a deed of homestead property without the joinder of the spouse is void (of no effect) and such a mortgage is voidable (may be set aside by the non-signing spouse). Thus, there is no change to the longstanding requirement that all deeds and mortgages require either joinder of the spouse or a statement that the subject property does not constitute the homestead of the title holder, their spouse or any legal dependent or that the grantor/mortgagor is a single person.

Before relying on a deed containing a waiver of homestead rights from a surviving spouse, please contact the Florida Underwriting Department to discuss the facts surrounding the transaction. 

If you have any questions relating to this or other bulletins, please contact a Stewart Title Guaranty Company underwriter.

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