Waiver Of Spousal Inheritance Rights And New Statute Affecting Homestead

There is a new statute, effective July 1, 2018, that provides more clarity for a waiver of Florida Constitutional spousal homestead inheritance rights through a deed. The Florida Constitution, under Article X, Section 4(c), states:

“the homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child.”

The new statute, Florida Statutes Section 732.7025, provides specific language to include in a deed to effectuate a waiver of homestead inheritance rights to allow the owner spouse to freely devise the property after death without the Florida Constitution’s devise restrictions. This statute relates solely to homestead inheritance rights and does not affect other spousal probate rights. A deed which complies with this statute waives homestead inheritance rights, but it does NOT: 1. waive the owner’s creditor protection against creditor claims during the owner’s life or after death; OR 2. waive the restriction against alienation by mortgage, sale, gift, or deed without the joinder of the non-owner spouse.

The following language (or substantially similar language) will constitute a presumption that the non-owner spouse has waived his/her homestead inheritance rights if 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.”

This does not mean that homestead inheritance rights cannot be waived through a deed if this language is not/was not included but it is much less clear without it. There are Florida cases1 which hold that a spouse waived his/her homestead inheritance rights through a deed, but those cases are factually specific and cannot be relied upon without a detailed analysis of the facts and a judicial determination. Without the language in Florida Statutes Section 732.7025, it is possible that a court could find that the deed does not constitute a valid waiver because it was not a knowing and intelligent waiver.

Homestead inheritance rights, as well as other spousal inheritance and probate rights (elective share, intestate share, pretermitted share, exempt property, family allowance, and preference in appointment as personal representative) can also be waived by a written agreement under Florida Statutes Section 732.702.

Judicial approval is still likely required for both waivers of homestead inheritance rights through written agreements and through deeds that do not include the language described in Florida Statutes Section 732.7025 for title insurance purposes. Including the specific waiver language from Florida Statutes Section 732.7025 in a deed between spouses can avoid the need for judicial approval. Therefore, a more effective practice would be to execute a deed with the statutory language regardless of whether there is a written agreement that also includes a waiver of homestead inheritance rights.

A waiver of spousal probate and inheritance rights under Florida Statutes Section 732.702 must be in the form of a written contract, agreement or waiver that is signed by the waiving party in the presence of two subscribing witnesses, no consideration is required. However, the witness requirement only applies to waivers signed by Florida residents after January 1, 2002. A waiver signed by a non-resident of Florida is valid here if it was valid when executed under the laws of the state or country where it was executed, whether or not he/she is a Florida resident at the time of death. The language used in the written waiver does not have to be complicated or detailed—in fact, it is very simple. The statute only requires the written waiver to state that it is a waiver of:

“all rights” (or comparable language) “in the property or estate of a present or prospective spouse, or a complete property settlement entered into after, or in anticipation of, separation, dissolution of marriage, or divorce.”

All rights waived do not need to be listed and are included unless the waiver specifically provides to the contrary. A waiver under Florida Statutes Section 732.702 affects all rights that pass by intestacy or by the provisions of a will executed before the waiver. A subsequently executed will supersedes a previously executed waiver to the extent that provisions are in conflict. The waiver does not even have to be an actual “waiver”, or a document titled as a “prenuptial” or “postnuptial” agreement to effectively waive spousal rights.

A waiver under Florida Statutes Section 732.702 results in a rebuttable presumption that spousal probate rights have been waived.2 Financial disclosure is not required if the waiver is executed before marriage, but financial disclosure is required if the waiver is executed after marriage.3 Additionally, there is no presumption of undue influence available to parties contesting a prenuptial agreement in a probate proceeding like there is in a dissolution proceeding. A prenuptial agreement benefiting one party in a grossly disproportionate manner—even with evidence of coercive circumstances surrounding its execution—does not give rise to a presumption of undue influence or overreaching when such agreement is contested in probate proceedings.4 However, a prenuptial agreement may be set aside by a probate court on other grounds—for instance, one’s signature had been coerced or otherwise improperly obtained or the party was incompetent at the time he/she signed.5

This new statute is another detail in the already very detailed area of Florida homestead law. There is now a statutory mechanism available to make it clear that a deed between spouses is a waiver of homestead inheritance rights.

1. Stone v. Stone, 157 So. 3d 295 (Fla. 4th DCA 2014); Lyons v. Lyons, 155 So. 3d 1179 (Fla. 4th DCA 2014)
2. In re Estate of Roberts, 388 So. 2d 216, 217 (Fla. 1980).
3. Fla. Stat. §732.702(2).
4. Evered v. Edsell, 464 So. 2d 1197 (Fla. 1985).
5. Id. (citing In Re Estate of Roberts, 388 So. 2d 216, 217 (Fla.1980).