Chames v. DeMayo, — So.2d —-, 2007 WL 4440212 (Fla. Dec 20, 2007)

Within the probate context there are two aspects of Florida’s constitutional homestead protections that loom large: the debtor protections found in sections 4(a) and (b) of article 10 of the Florida Constitution; and the limitations on devise found in section 4(c) of article 10.

Homestead Debtor Protections:

For probate practitioners this case is important because the Florida Supreme Court clearly defines the public policy reasons for why Florida’s constitutional homestead debtor protections are NOT purely personal rights that may be waived by a homeowner like any other constitutional protection.  Florida’s homestead laws protect not only the homeowner, they also protect the homeowner’s family and the State.  So no matter what the homeowner/debtor may say, the "State" has a stake in the outcome and will thus limit the homeowner’s personal property rights in his or her home to the extent necessary to protect those public interests.  That’s been the law in Florida for over a hundred years, and in the linked-to opinion the Florida Supreme Court makes clear it sees no reason to change things now.

Here’s how the Florida Supreme Court made this point:

Chames argues that waiver of the homestead exemption should be permitted because we have permitted waiver of other constitutional rights. This would be the most compelling reason for receding from Carter and Sherbill, for if indeed we have held that other constitutional rights can be waived, it would seem anomalous to prohibit waiver of the homestead exemption. We do not agree, however, that such an inconsistency exists.

It is true that we recently noted that “most personal constitutional rights may be waived.” In re Rule 4-1.5(f)(4)(B), 939 So.2d at 1038; see also In re Shambow’s Estate, 153 Fla. 762, 15 So.2d 837, 837 (Fla.1943) (“It is fundamental that constitutional rights which are personal may be waived.”). However, an individual cannot waive a right designed to protect both the individual and the public. See, e.g., Coastal Caisson Drill Co. v. Am. Cas. Co. of Reading, Pa., 523 So.2d 791, 793 (Fla. 2d DCA 1988), approved, 542 So.2d 957 (Fla.1989); Asbury Arms Dev. Corp. v. Fla. Dep’t of Bus. Regulations, 456 So.2d 1291, 1293 (Fla. 2d DCA 1984). We have repeatedly recognized that the homestead exemption protects not only the debtor, but also the debtor’s family and the State. See Havoco, 790 So.2d at 1020; Snyder, 699 So.2d at 1002; Caggiano, 605 So.2d at 60; Lopez, 531 So.2d at 948; Slatcoff, 76 So.2d at 794; Hill, 84 So. at 192. Therefore, the right to the homestead exemption is not purely personal as some others are.

Homestead Limitations on Devise:

In contrast to Florida’s homestead debtor-protection rights, the limitations on the devise of homestead property ARE purely personal in nature, and thus ARE subject to waiver [click here for explanatory examples].  For Florida probate practitioners understanding this distinction is the key to any hope of making sense of Florida’s convoluted homestead laws.  Here’s how the amicus curiae brief of the Real Property Probate & Trust Law Section of the Florida Bar explained the difference between the constitutional homestead protections for general creditor-debtor relationships found in article 10, sections 4 (a) and (b), versus the homestead protections involving the devise of homestead property and other intra-family transactions found in article 10, section 4 (c) of the Florida Constitution:

[S]ections (4) (a) and (b) protect Floridians from general creditors. Section 4 (c), on the other hand, protects the surviving spouse and minor children from having the homestead transferred out from under them without the consent of both spouses.

Section 4 (c) has nothing to do with protection from general creditors and is manifestly a pure, personal right that is subject to waiver. Similarly, waiver of homestead in agreements between spouses is permissible in the context of nuptial agreements and divorce settlements. See Hartwell v. Blasingame, 584 So. 2d 6 (Fla. 1991); §732.702, Fla. Stat.; Myers v. Lehrer, 671 So. 2d 864, 866 (Fla. 4th DCA 1996)

Sections 4 (a) and (b), on the other hand, when applied to general creditors are mandatory and have precisely expressed exceptions, precluding all others. See Sherbill v. Miller Mfg. Co., 89 So. 2d 28, 31 (Fla. 1956); see also In re Clements, 194 B.R. 923, 925 (M.D.Fla. 1996) (confirming that under the expressio unius est exclusio alterius rule, homestead, in Florida, may not be used to satisfy debts other than those expressly permitted by article X, section 4). To be sure, the purpose of sections 4 (a) and (b) in the context of a general creditor-debtor relationship is to protect each of us from being destitute and, in that regard, might be considered a personal right and waivable. See City of Treasure Island v. Strong, 215 So. 2d 473, 479 (Fla. 1968) (“[I]t is firmly established that such constitutional rights designed solely for the protection of the individual concerned may be lost through waiver.”). But, this homestead protection is also designed to promote the stability and welfare of the state, which would otherwise be burdened as the caregiver for its destitute citizens. See McKean v. Warburton, 919 So. 2d 341, 344 (Fla. 2005); Public Health Trust v. Lopez, 531 So. 2d 946, 948 (Fla. 1988). Because of the state’s interest in protecting debtors in the general creditor-debtor relationship, the homestead protection cannot be lost through waiver. See Sherbill v. Miller Mfg. Co., 89 So.2d at 31.

For more background on this case and a link to the underlying 3d DCA opinion click here and here.