As many know, Florida homestead is a difficult concept as there are several aspects of Florida homestead… creditor protection, tax exemptions, save our home cap, and restrictions on devise if survived by a spouse and/or minor children. In the recent case of Feldman v. Schocket, the court opined as to the validity of an attempted devise of homestead when there was a surviving spouse.
Jeff and Patricia were married in 2003 and resided in Islamorada, Florida (the “Homestead”). Patricia mortgaged the Homestead (the Homestead was apparently in her name alone) to fund her law practice. Jeff signed both mortgages waiving his Homestead rights under the Florida Constitution providing consent to the liens on the Homestead.
Patricia died on October 26, 2016.She signed her will 2 days before her death stating that the Homestead should be sold. Until the sale Jeff could reside in the Homestead. Jeff stayed in the Homestead.
In November, 2016, the proposed personal representative of Patricia’s estate, Robert Feldman, (the “PR”) gave Jeff a spousal waiver and advised Jeff that the waiver would allow the PR to pay the bills for the Homestead. The waiver stated that Jeff waived all his rights pursuant to Sections 732.401 and 732.4015 of the Florida Statutes. Jeff signed such waiver in the presence of 2 witnesses. The waiver was neither notarized nor recorded.
On December 20, 2016, Feldman was appointed as PR. The PR then notified Jeff that he had a buyer for the Homestead. Jeff brought an action seeking his rights as a surviving spouse in the Homestead. The PR filed an answer and raised the defenses of set-off, waiver, laches, failure to mitigate damages and estoppel.
Jeff filed a motion for summary judgement and ultimately the lower court agreed and granted the motion for summary judgement that the Florida Constitution protected Jeff’s interest in the Homestead. The PR appealed.
After discussing the law of summary judgment, the appellate court then analyzed the Florida Constitution provision which provides that a Florida homestead can not be devised if the decedent is survived by a spouse or minor child . The surviving spouse’s rights can be waived but there must be evidence that it is the surviving spouse’s intent to waive the constitutional and statutory claim to Florida homestead property. Provisions for a waiver are set forth in Section 732. 702(1) of the Florida Statutes.
A spouse can waive Florida homestead rights before or after a marriage if the waiver is signed by the waiving part in the presence of 2 subscribing witnesses. If a waiver is signed after marriage there must be full disclosure of assets. As the waiver that Jeff signed was signed after marriage and there was no disclosure prior to his signature, the waiver was invalid. Further, the only purpose for the mortgage waivers were to allow the mortgages to be liens on the property not for devise purposes.
The appellate court also found the waiver presented by the PR was entered into AFTER the death of the spouse. The statute “does not contemplate contracting with a deceased spouse”. Further, in the absence of a valid waiver, the Homestead passed by operation of law at Patricia’s death to Jeff in a “twinkle of an eye” (author’s comment). Because the Homestead passed at the moment of death, the post death waiver was “too little, too late.”
The PR then argued that the signing of the waiver was a disclaimer of interest by Jeff. That argument was easily dismissed as disclaimers are governed by Florida law and require an acknowledgment and recording for real estate. The statute is now the exclusive method for a disclaimer and its requirements were not met. The appellate court affirmed the lower court’s determination that the Jeff held title to the homestead under the Florida Constitution and that summary judgment was appropriate.
ADVICE: Get and review Rohan Kelley’s paradigm and keep it close to your desk when discussing with clients the devise of homestead at death. This author recommends having a specific paragraph in documents addressing homestead. You and your client will be reminded that homestead is “special” and must be addressed specifically.
WORD OF THE WEEK: Mitigation means that when anyone has a legal claim against another, they have a duty to minimize the damages. For example, if someone is injured by another’s negligence or breach of contract that person must take reasonable steps to reduce the damages, injury or cost, and to prevent them from getting worse.
GENEROSITY IS A KEY TO HAPPINESS …REACH OUT AND HELP SOMEONE TODAY!