Article X, section 4(c) of the Florida Constitution consists of two operative sentences, each of which deals with a totally distinct facet of Florida homestead law. The first governs restrictions on the devise of homestead property, which is an issue we deal with all the time as probate practitioners. Here’s what that sentence says:
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 second operative sentence governs how married couples can mortgage their homestead property, which is an issue real estate attorneys deal with all the time; probate lawyers not so much. Here’s what that second sentence says:
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.
We run into trouble when the same homestead property gets tangled up in a dispute involving both of these constitutional protections (each of which is freighted with its own long and convoluted body of case law), which is what happened in the Feldman case.
Case Study
Feldman v. Schocket, — So.3d —-, 2022 WL 4360599 (Fla. 3d DCA September 21, 2022)
This case involved a $2+ million homestead property in the Florida Keys owned by a married woman. In 2015 she mortgaged the property twice. As explained by the 3d DCA, her husband signed two separate waivers to facilitate the mortgages:
Both mortgages contained identical waivers, providing, in relevant part: “Mortgagor, [husband], is joining in the execution of this mortgage for the sole purpose of waiving his or her homestead rights under Article X, Section 4 of the Florida Constitution, and shall not be bound by the terms, conditions or warranties contained in this instrument.”
The following year, in 2016, wife executed a will two days before her death containing an invalid devise of her homestead property.
After wife’s death surviving spouse executed a third waiver, which specifically referenced his testamentary homestead rights. The spousal waiver provided:
I, JEFFREY SCHOCKET, herby [sic] waive, any and all right, title, and interest I have in the property . . . . Specifically . . . any rights, title and/or interest that I may have to claim that the aforementioned property is exempt and/or excluded from my wife, Patricia M. Silver’s estate pursuant to Florida Statute §732.401 or Florida Statute §732.4015.
According to the surviving spouse, he “didn’t read the document” and “wasn’t aware of [his] rights or interest in the property at that time.”
When wife’s personal representative sought to take control of the homestead property surviving spouse objected, claiming the property for himself — in spite of his three signed homestead waivers. In an opinion that should be required reading for any probate practitioner navigating homestead issues (which is all of us), the 3d DCA ruled in favor of surviving spouse. He got the $2+ million house — in spite of his wife’s contrary will provisions and in spite of his three signed homestead waivers. Here’s why.
Is a homestead mortgage waiver the same as a homestead devise waiver? NO
Buried in the boilerplate of any mortgage on a Florida homestead property that’s owned by a married person is going to be some variation on the homestead waiver buried in the boilerplate of the two mortgages at issue in this case. Does that mean we should assume all homestead rights have been waived anytime homestead property’s mortgaged? Of course not.
If a waiver’s clearly intended only to facilitate a mortgage, it can’t be bootstrapped into a universal waiver of all spousal homestead rights. So saith the 3d DCA:
“In order to find that a survivor spouse has waived/relinquished homestead protection, evidence must demonstrate the survivor’s intent to waive the constitutional and statutory claim to homestead property.” Rutherford, 679 So. 2d at 331. In this context, waiver is statutorily circumscribed. …
[N]owhere do the mortgage waivers [in this case] reference the constitutional prohibition on devise in the event a decedent is survived by a spouse or minor child. Instead, by their plain language, the mortgage waivers were executed for a qualified purpose. Without [husband’s] signature, the mortgages would not constitute a valid lien on the property. See Pitts v. Pastore, 561 So. 2d 297, 301 (Fla. 2d DCA 1990). Thus, his signature was necessary to facilitate the constitutionally permissible purpose of “alienat[ing] the homestead by mortgage.” See art. X, § 4(c), Fla. Const.
Further, in Chames v. DeMayo, 972 So. 2d 850 (Fla. 2007), echoing the words of this court, Justice Cantero sagaciously cautioned against enforcing boilerplate homestead waivers buried within documents of other legal significance …
In this case, the qualified mortgage waivers were buried within documents of other legal significance. Under these circumstances, we conclude, as did the trial court, that the mortgage waivers are … insufficient to “evince an intent by [husband] to waive [his] homestead rights.” Rutherford, 679 So. 2d at 330.
Is a surviving spouse’s post-death waiver of invalidly devised homestead property legally enforceable? NO
OK, so the two mortgage-related waivers didn’t defeat surviving spouse’s claims to the homestead property. But what about the third waiver he signed, after his wife had died, which specifically referenced his testamentary homestead rights? Surely that sunk his claims? Nope. There are two reasons why this third waiver also failed.
First, F.S. 732.702 — the statute governing spousal waivers of testamentary homestead rights — does NOT apply post death. In other words, both spouses have to be alive for this kind of waiver to be legally enforceable. Because the third waiver in this case was signed after wife’s death, it’s not enforceable. So saith the 3d DCA:
[S]ection 732.702(1), Florida Statutes, anticipates that a party will contract with “a present or prospective spouse” or in anticipation of “separation, dissolution of marriage, or divorce.” The statute does not contemplate contracting with a deceased spouse. … [I]n placing their imprimatur upon waiver, courts have embraced the legal fiction that a waiver executed before or during marriage is the “legal equivalent of the prior death of the [spouse].” Jacobs v. Jacobs, 633 So. 2d 30, 32 (Fla. 5th DCA 1994) (quoting Wadsworth, 564 So. 2d at 635); see also In re Slawson’s Est., 41 So. 2d 324, 326 (Fla. 1949). This legal fiction removes the constitutional impediment to devising the homestead property. See Jacobs, 633 So. 2d at 32; Wadsworth, 564 So. 2d at 635. In the absence of a waiver, however, the property passes by operation of law to the surviving spouse upon the death of the decedent. See Rutherford, 679 So. 2d at 331. Here, because the mortgage waivers failed, Schocket’s property interest vested upon Silver’s death. Thus, the post-death spousal waiver was too little, too late.
Second, if homestead property’s invalidly devised, at the moment of death the property passes outside of probate and vests “in a twinkle of an eye” in the surviving spouse. So even if post-death homestead waivers under F.S. 732.702 were enforceable (they’re not), it doesn’t matter, what you’re really talking about at this stage of the game is a post-death disclaimer of an already inherited property right.
So if your post-death “fix” of a botched homestead devise involves the surviving spouse giving up his claims to the property, you need to make sure your deal complies with the strict requirements of F.S. 739.104(3) for a valid post-death disclaimer of inherited property rights. If you don’t nail these requirements, your deal’s going to unwind, as happened in this case. So saith the 3d DCA:
Feldman alternatively argues that the spousal waiver should be construed as a disclaimer. This argument fails on both procedural and substantive grounds.
Critically, the waiver is not statutorily compliant. It does not purport to be a disclaimer, it was not acknowledged before “a judge, clerk, or deputy clerk of any court; a United States commissioner or magistrate; or any notary public or civil-law notary of this state,” and it was not recorded. § 695.03(1), Fla. Stat.; see § 739.104(3), Fla. Stat.; § 695.26(1), Fla. Stat. (2022). The disclaimer statute makes no provision for partial compliance.
Notwithstanding these deficiencies, Feldman relies upon Youngelson v. Youngelson’s Estate, 114 So. 2d 642 (Fla. 3d DCA 1959), for the proposition that the spousal waiver is enforceable under our precedent. …
Although the holding in Youngelson remains undisturbed, the instant case is distinguishable. There was no post-death settlement here, and, perhaps more importantly, long after Youngelson was decided, the legislature exercised its prerogative to enact chapter 739 of the Florida Statutes. This statute now represents the exclusive means by which an individual may disclaim an interest in property. § 739.103, Fla. Stat. (2022) (“[T]his chapter is the exclusive means by which a disclaimer may be made under Florida law.”); see also Lee, 263 So. 3d at 827 (“The Florida legislature has codified the requirements for disclaimer of property in chapter 739, the Florida Uniform Disclaimer of Property Interests Act.”). Consequently, Youngelson cannot serve as a conduit for reviving a statutorily noncompliant disclaimer.