Florida appellate court holds that husband and wife can waive homestead rights by signing a joint deed.

Editor's Note:   This blog was left on the website to illustrate an important point:  this website should be used to help you understand general issues necessary to ask appropriate questions when selecting an attorney.  The website is not a legal source or legal advice.  That is the reason for Terms and Conditions at the bottom of every page.  In this case the decision described below was withdrawn by the 3rd District's own motion on May 17, 2011 at 2011 Fla. App. Lexis 8989.  The court stated as follows: "Upon the Court's own motion, and upon consideration of a settlement of this appeal before the issuance of a final opinion, the non-final opinion issued February 9, 2011, 2011 Fla. App. LEXIS 1528, 36 Fla. L. Weekly D 300, is hereby withdrawn."  This is one of many reasons that you need qualified counsel to assist you.  For more information contact Linde Law Group today!

The holding of this recently decided case [Habeeb v. Lindner 36 Fla. L. Weekly D300c (3rd DCA Case 3D10-1532, 2011)] is interesting to attorneys in Florida who practice in real property and probate because of a question that the case answers concerning homestead waiver between a husband and wife. 

The scenario in this case is this:  Husband (H) and Wife (W) sign a deed transferred property from H and W as tenants by the entireties to H or W or H or W’s trust.   Both H and W sign the deed.  Then W dies.  W’s will gave H a life estate, but the remainder of the property passed to W’s sister.  H’s nephews sued after H’s death claiming that because the property was H and W’s homestead, and the homestead rights were not specifically waived, W’s will could not devise the homestead except to H in fee simple.  The question is whether by signing the deed, H & W waived their rights to the homestead property within the meaning of Florida Statute §732.702 or whether a separate waiver required.

As the Third District Court of Appeals stated:

“The question presented, apparently one of first impression in Florida, is whether the 1979 warranty deed accomplished a complete transfer or waiver of Mitchell's [Husband’s] homestead rights under article X, section 4(c) of the Florida Constitution. Expressed another way, the appellant argues that no such transfer or waiver of Mitchell's [Husband’s] homestead interests was effectual in 1979 because the warranty deed failed to satisfy the requirements of section 732.702(1), Florida Statutes (1979).”

“The statute itself contemplates that a “written contract, agreement, or waiver” may be used to memorialize a relinquishment of a spouse's homestead rights. These alternatives demonstrate that “waive” is not a talismanic word within the statute, so that a contract or agreement may accomplish the same result. Neither the statute nor any interpretation of the statute supports the appellant's argument that Mitchell was required to execute a second “contract, agreement, or waiver” after (1) title had vested exclusively in Virginia's name, (2) she “formed the intention that the property would be her domicile or permanent residence,” and (3) he survived her. To the contrary, the Florida Supreme Court has concluded that a spouse's single agreement under section 732.701(1) “is the legal equivalent of predeceasing the decedent, for purposes of article X, section 4(c).” City National Bank of Florida v. Tescher, 578 So. 2d 701, 702 (Fla. 1991). In that case, as here, the surviving spouse had waived homestead previously and no minor children survived the decedent.”

Thus, it appears that husband and wife can alienate their homestead property in a joint deed without having to prepare a separate waiver.  For additional information, contact Linde Law Group


Matthew A. Linde
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