By Stephanie M. Chambers, Esq.
Many Florida homeowners do not realize that the Florida Constitution places limits on how and to whom they can leave their homestead property after they have passed away. Homestead is defined as the property on which the owner currently resides. These constitutional limitations apply when the owner has a spouse that does not co-own the property or at least one minor child. A recent legislative change addresses the first of these two restrictions. Beginning July 1, 2018, Florida Statutes §732.7025 is added to allow spouses to waive this constitutional restriction in a deed, clearing up a conflict that had arisen in Florida case law. Prior to this legislative change, spouses would have to sign a pre- or post-nuptial agreement to establish an effective waiver. Allowing for this waiver to occur in a deed allows for more certainty and greater predictability when establishing estate plans involving constitutionally protected homesteads.
While most married couples own their homestead property jointly, there are situations, such as second or subsequent marriages, or marriages later in life, where a couple may choose to maintain their assets separately. If you think you may need help with this issue or any other estate planning concern, call to schedule an appointment with one of our estate planning attorneys. We would be happy to discuss your needs with you, and help you establish an estate plan that will best accomplish your wishes.
Citations: 2018-22, Laws of Florida, 2018 SB 512, Habeeb v. Linder, 36 Fla. L. Weekly D300 (Fla. 3d DCA 2011), and Stone v. Stone, 157 So. 3d 295 (Fla. 4th DCA 2014).