Florida Permits Waiver of Homestead Rights with General Release Language

May a surviving spouse waive his or her homestead rights with a warranty deed containing only “boilerplate general release language?”  Florida’s Fourth District Court of Appeals recently answered this question in Stone v. Stone, 157 So. 3d 295 (Fla. 4th DCA 2015).  In this case a disinherited heir, Ross, argued that the devise of property into a trust was invalid because his mother and decedent’s spouse, Alma, did not validly waive her homestead rights.

According to Florida law, if a decedent is only survived by his spouse and children the decedent can only devise a full fee interest in his homestead to his spouse, unless she waives her homestead rights.  Ross wanted his mothers’ waiver to be declared invalid because Florida law would permit him to inherit a “per stirpital” share of the homestead’s vested remainder.  The court upheld the validity of the waiver because Alma signed a warranty deed containing general release language.  Florida estate planners are divided over this ruling and have differing opinions on how specific the language needs to be in a waiver of homestead rights. 

See Elizabeth Bowers and George Karibjanian, Florida Homestead Rights Can Be Waived by Warranty Deed, Trusts & Estates, April 14, 2015.

Special thanks to Jim Hillhouse for bringing this article to my attention.