In Thayer v. Hawthorn, 2023 Fla. App. LEXIS 2433, 2023 WL 2903993 (Fla. 4th DCA 4/12/23), as part of estate planning, Doris and James executed a warranty deed conveying one-half of the property to each of their revocable trusts. The deed contained the following operative words of conveyance: that grantor “has granted, bargained and sold to the said grantee, and grantee’s heirs and assigns forever…”. The trial court found that Doris had waived her homestead rights to her husband’s one-half interest when she executed a warranty deed conveying the property to herself and her husband as tenants in common. The appellate court, in reversing the trial court, reasoned:
The Florida Constitution provides that a homestead is generally not devisable:
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 owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.
Art. X, § 4(c), Fla. Const. However, Florida law allows spouses to waive all types of spousal rights, including rights to the homestead. Section 732.702(1), F.S. provides:
The rights of a surviving spouse to . . . homestead . . . , may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses. . . . Unless the waiver provides to the contrary, a waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse . . . , is a waiver of all rights to . . . homestead . . . , by the waiving party in the property of the other and a renunciation by the waiving party of all benefits that would otherwise pass to the waiving party from the other by intestate succession or by the provisions of any will executed before the written contract, agreement, or waiver.
The trial court relied on Stone v. Stone, 157 So. 3d 295 (Fla. 4th DCA 2014) to conclude that the warranty deed was sufficient to waive homestead rights. Stone, however, is distinguishable. In Stone, as in this case, spouses had transferred their homestead to themselves as tenants in common and subsequently transferred their interests into their own trusts. The deed’s language splitting the property into tenancy in common interests stated that the spouse “grants, bargains, sells, aliens, remises, releases, conveys, and confirms” the property “together with all the tenements, hereditaments, and appurtenances thereto belonging or in anywise appertaining.” (emphasis added). Without citation, this court concluded that this language was sufficient to waive homestead rights under the statute.
While one may question whether the language in Stone was sufficiently specific to waive homestead, it is still more specific than the deed’s language in this case. The Stone deed released the property and also conveyed the property “together with all…hereditaments.” A hereditament is “[a]ny property that can be inherited; anything that passes by intestacy.” Hereditament, Black’s Law Dictionary (11th ed. 2019). The language thus conveyed the spouse’s inheritance interest in the property, and this would include her constitutional right to the inheritance of the homestead. Moreover, the deed released the spouse’s rights in the property. The warranty deed here contains no language of release or of conveyance of a hereditament. The grantor simply “granted, bargained and sold” the property to the grantee. This is insufficient to constitute a written waiver of homestead rights as required by section 732.702(1).
Stone generated concern as to what language in a deed would constitute a waiver of homestead rights. See Jeffrey S. Goethe & Jeffrey A. Baskies, Homestead Planning Under Florida’s New “Safe Harbor” Statute, 93 Fla. B. J. 36 (May/June 2019). To provide guidance, the Legislature enacted §732.7025, F.S. (2018), providing that a deed containing certain language would constitute a waiver of the homestead rights: “(1) A spouse waives his or her rights as a surviving spouse with respect to the devise restrictions under s. 4(c), Art. X of the State Constitution if the following or substantially similar language is 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.”
While this statutory provision does not apply in this case, it is illustrative of the point that language waiving a constitutional right must be able to be clearly understood as waiving the right. Similarly, in Merli v. Merli, 332 So. 3d 1020 (Fla. 4th DCA 2022), in discussing the waiver of rights in a marital settlement agreement, we stated, “[p]ursuant to the plain language of section 732.702 and the partial marital settlement agreement, neither the decedent nor the wife explicitly waived their right to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, or preference as personal representative.” Id. at 1022 (emphasis added). Here, James and Doris’ warranty deed does not contain language clearly evincing a waiver of the homestead right.
Because the statute requires that a spouse execute a written waiver in front of subscribing witnesses, and we have concluded that the deed is not a waiver, external evidence such as the estate planning attorney’s testimony cannot correct the deed. The statute requires the waiver to be in writing. Allowing parol evidence to supplement the writing not only would violate the statute, but it would also wreak havoc on land transfers. 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. That, of course, is why the Legislature provided definitive waiver language for inclusion in deeds as a “safe harbor” for conveyances of homestead.
Conclusion: The Florida Constitution protects the homestead upon the death of an owner by precluding its devise when there is a spouse. Homestead rights may be waived in accordance with the statutory provisions of §732.702(1), F.S. In this case, we conclude the warranty deed did not waive homestead, because it lacked language specifically releasing inheritance rights.