A recent case, Thayer v. Jefferson, illustrates how a surviving spouse can waive their homestead right under the Florida Constitution during their lifetime. As has been discussed in prior blogs, there are 3 aspects of Florida homestead. First, the homestead real estate tax exemption and the related save our home cap protection, second, the protection against creditors during the owner’s life and third, the restriction against devise if there is a minor child or a spouse. This case focuses on the third aspect and how a surviving spouse can waive his or her right to the homestead at death by executing a waiver during his or her lifetime so the homestead can be devised AWAY from such surviving spouse.
Doris and James Hawthorn married in July, 1978 and stayed married until James disappearance in 2014. James was determined to be deceased in 2017, with no descendants. Doris had 5 children (all adults). In 1987, Doris signed a deed transferring the homestead from herself to herself and James. In 2002, Doris and James signed deeds transferring 1/2 of their interest in the homestead to each of their revocable trusts. The deed stated that the grantor “granted, bargained and sold to the said grantee, and grantee’s heirs and assigns forever” each person’s share of the homestead. Each revocable trust was for each other’s benefit and then, at Doris death, her trust was to be distributed to her children and James trust was to be distributed to his brother and Doris’ children.
A petition was filed to determine that James could freely devise his 1/2 share of the homestead. Doris’ heirs contested the petition arguing that Doris had never waived her constitutional right to the homestead at James’ death. Thus, the homestead would have been distributed outright to Doris when James died. Later at Doris’ death, such homestead would be distributed to her children under her revocable trust.
James’ heirs argued that Doris waived her homestead right by signing the warranty deed conveying 1/2 of the homestead into Doris and James respective trusts. Because Doris waived her rights by a “written contract signed in the presence of two subscribing witnesses before or after entering a marriage” and that a waiver of “all rights” or equivalent language is a waiver. The court also considered an affidavit by the estate planning attorney that Doris and James intended to waive such rights.
Doris’ children argued that she never waived her rights because the deed did not include the language such as waive “all rights” and there was no other documentary evidence as required under Florida law. The lower court determined that the Doris had waived her spousal right to the homestead. The case was appealed.
The appellate court noted that the lower court relied on the Stone case to determine that the warranty deed was sufficient to waive homestead rights. The language in the deed referenced in the Stone case included language that the grantor “grants, bargains, sells, aliens, remises, releases, conveys and confirm” the property “together with all the tenements, hereditaments and appurtenance thereto…” The Stone court concluded that this language was sufficient to waive a surviving spouse’s homestead right. Stone created concern as to what language would actually waive such right and, as a result, recent Florida legislation has been enacted to confirm the specific language that will constitute a waiver of a surviving spouse’s homestead right.
Under the new Florida statute, a deed must have the following or similar language. “By executing or joining this deed I intend to waive my homestead rights that would otherwise prevent my spouse from devising the homestead property described in the deed to someone other than me.”
The court noted that while the new statute did not apply in this case, the intent is that the waiver must be specific and the language waiving a constitutional right “must be able to be clearly understood as waiving the right”. The language in the deed did “not contain language clearly evincing a waiver of the homestead right”. The appellate court concluded that Doris had not waived her right to James’ portion of the homestead.
The appellate court also stated that, because there was no waiver, external evidence such as the estate planning attorney’s testimony could not correct the deed, because the waiver had to be in writing. Otherwise, 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.”
ADVICE: The best way to waive homestead rights is through either a prenuptial or post-nuptial agreement. However, if the parties do not prepare such documents, the new Florida statute provides some relief in the language in the deed which specifically allows the waiver. Another Florida statute requires full disclosure of assets for a valid waiver of homestead if the waiver is made after marriage. Which statute controls? The best practice is to have full disclosure of assets in a postnuptial agreement.
WORD OF THE WEEK: Hereditaments is any property that can be inherited; anything that passes by intestacy. Thus, in the Stone case discussed above, hereditaments conveyed her inheritance interest in the property which included her constitutional inheritance of the homestead.
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