Florida Spousal Waiver of Homestead Rights

The Two Instruments That Can Waive Homestead

Florida restricts who you may leave your homestead to. If you are survived by a spouse and have no minor child, the home may pass only to that spouse, unless the spouse has given the right up. That restriction, and the tiers around it, are set out in who you can leave your Florida home to.

Only two instruments waive it.

• A deed. Fla. Stat. §732.7025(1) supplies a sentence, and including it or substantially similar language in a deed waives the surviving-spouse devise restrictions. Added in 2018.
• A written marital agreement. Fla. Stat. §732.702(1) permits a surviving spouse’s rights, homestead expressly among them, to 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.

Both require both spouses to be alive. Neither can be done afterward, and no court has been willing to construct a third route.

Practice pointer. Decide which instrument carries the waiver before drafting either one, because a deed waiver and an agreement waiver land in different places in the record. The deed is public and a title examiner will find it. The agreement sits in a drawer, and the family has to know it exists.

The Deed Sentence, Word for Word

Fla. Stat. §732.7025(1) provides that a spouse waives his or her rights as a surviving spouse with respect to the devise restrictions 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.”

Use those words. The statute permits substantially similar language, and the reason to decline the invitation is the litigation history that produced the statute in the first place. A court reviewing a deed written in 2002 observed that the Legislature enacted this sentence because an earlier decision had generated concern about what language in a deed would constitute a waiver. The safe harbor exists because improvisation kept failing.

Subsection (2) then fences the sentence in. It provides that the waiver language may not be considered a waiver of the protection against the owner’s creditor claims during the owner’s lifetime and after death, and may not be considered a waiver of the restrictions against alienation by mortgage, sale, gift or deed without the joinder of the owner’s spouse. So it reaches the devise restriction and nothing else.

Practice pointer. The natural moment to capture this is a closing where the spouse is already signing something. A refinance or a deed into a trust puts both spouses at the table with a notary and witnesses, and adding one sentence there costs nothing. The 2022 case discussed below turned on exactly that missed opportunity.

Waiving Homestead in a Prenup or a Postnup

Fla. Stat. §732.702(1) is the marital-agreement route, and it covers more ground than homestead alone. The rights a surviving spouse may waive under it are the elective share, the intestate share, the pretermitted share, homestead, exempt property, family allowance, a claim under Florida’s community property rights at death act, and preference in appointment as personal representative of an intestate estate. The formality is a written contract signed by the waiving party before two subscribing witnesses.

One provision in this statute matters more than the rest for planning, and it is a timing rule.

“Each spouse shall make a fair disclosure to the other of that spouse’s estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage.” Fla. Stat. §732.702(2).

A prenuptial agreement needs no financial disclosure to waive these rights. A postnuptial agreement does. That is the strongest practical reason to have the conversation before the wedding rather than after it, and it is a reason that has nothing to do with romance or distrust. Fla. Stat. §732.702(3) adds that no consideration beyond executing the agreement is necessary either way.

The statute also defines what a general waiver reaches, and this is the sentence that most often disappoints. A waiver of “all rights” or equivalent language operates as a waiver of those rights by the waiving party in the property of the other. In 2014 a Florida appellate court applied that language to a marital settlement agreement and held that the mutual releases waived homestead rights in the other spouse’s property, not the deceased spouse’s homestead rights in his own home, so the provisions were inapplicable.

Practice pointer. Name the property and name the direction. A waiver that says “all rights” and stops has told a court which property it is talking about, and it may not be the one you meant. See how a Florida prenup and postnup compare and what the elective share actually reaches.

When Is the Deadline to Sign One of These?

The question I get most about this is, "When is the deadline?" My answer is that the deadline is both spouses being alive, and that is the only one. I cannot fix a homestead waiver after a death, and neither can a court. When someone calls me the week after a funeral asking whether a waiver can still be signed, I have to tell them no, and I would rather they read that here than hear it from me then.

Four Ways a Florida Homestead Waiver Fails

The reported decisions are more useful than any checklist, because they show experienced counsel getting this wrong in ways that look reasonable at the time.

A waiver is one of three ways the homestead restriction stops binding, and the other two do not need a signature. The restriction lifts on its own once there is no surviving spouse and no minor child, and a lifetime transfer is not a devise at all, which is the mechanism behind an enhanced life estate deed. What the surviving spouse receives when nobody waived anything is homestead and the surviving spouse.

1. Mortgage joinder waives nothing beyond the mortgage

In a 2022 decision, a Florida appellate court in the Third District rejected two mortgage joinders offered as homestead waivers. The signatures nowhere referenced the constitutional prohibition on devise, they had been executed for a qualified purpose because the spouse’s signature was constitutionally necessary to create the lien at all, and they were buried within documents of other legal significance. None of that evinced an intention to waive homestead rights.

2. “All rights” boilerplate points at the wrong property

The 2014 Second District case described above is the authority. Fla. Stat. §732.702(1) says a general waiver reaches rights in the property of the other spouse, and a court will read that literally.

3. A warranty deed’s ordinary words are not a waiver

In 2023 the Fourth District held that a 2002 warranty deed reciting that the spouses “granted, bargained and sold” their halves into their respective revocable trusts did not waive homestead. Waiver language, the court said, must be able to be clearly understood as waiving the right. The appellants’ argument carried the day in one line, that if the words of a statutory short-form warranty deed were enough, every warranty deed would act as a waiver of homestead rights.

4. Nothing signed after the death counts

The same 2022 case considered a spousal waiver the widower signed after his wife had died. It failed three times over. There was no fair disclosure of the estate as Fla. Stat. §732.702(2) requires for a waiver executed after marriage. The statute does not contemplate contracting with a deceased spouse and contains no provision for effectuating waiver after death. And the surviving spouse’s interest had already vested at the moment of death, which the court summed up as too little, too late.

That estate ran three waiver theories and lost all three. The decedent had been a lawyer, and she signed a will directing the sale of the homestead two days before she died.

Practice pointer. Never draft a clause directing the sale of a homestead for a married client without a waiver already on file. The instruction reads like fairness to the beneficiaries and operates as the one structure the restriction will not tolerate.

Why the Drafting Attorney’s Affidavit Cannot Save It

The 2023 Fourth District case is worth sitting with, because the estate had what most people would consider decisive proof. The estate planning attorney who prepared the 2002 deed supplied an affidavit and gave deposition testimony that both spouses had intended to waive homestead. The court held that testimony legally irrelevant, reasoning that the drafting attorney’s evidence cannot correct the deed.

The reasoning is not about whether the lawyer was believed. It is about land. Allowing parol evidence to supply a waiver the instrument does not contain would wreak havoc on land transfers, because title examiners could not rely on the recorded deeds. Everything a buyer or lender needs has to be visible on the face of the record.

Practice pointer. Contemporaneous intent, however well documented, does not cure a defective instrument. If a plan you hold was built on a deed whose waiver rests on habendum boilerplate rather than the statutory sentence, that is worth re-papering now, while both spouses can still sign. A corrective deed during life is inexpensive. The alternative is litigating it.

What No Waiver Can Reach

If a minor child survives the owner, the homestead may not be devised at all. Not to the spouse, not to the other children, not to a trust. Fla. Stat. §732.4015(1) permits the devise to a spouse only when there is no minor child, and the constitutional restriction it implements admits no waiver in this tier.

A minor cannot waive rights, and no parent or guardian can waive them on the child’s behalf for this purpose. Fla. Stat. §732.7025 addresses the spouse and says nothing about children. So for a family with young children, the honest answer is that the homestead is not going to be directed by the documents if a parent dies while a child is still a minor, and the plan should be built to work in that case rather than to pretend otherwise.

Practice pointer. Write the date the youngest child turns eighteen into the file and revisit the plan then. It is the only date on which this particular restriction disappears on its own.

What This Costs

Government costs are additional and passed through at cost, with county recording starting at $19.20 for a deed. Posted fees are honored for 90 days. The full schedule is on the pricing page.

Frequently Asked Questions

Common Situations

The refinance that could have fixed it. A Jupiter couple refinanced twice, and both times the wife signed because the lender required it. When the husband later wanted to leave his half to his brother, nothing in either mortgage helped, because a compelled signature on a lien document is not a waiver of the right to inherit. Adding the statutory sentence to a short deed, signed at the same kitchen table, took one appointment.

The agreement that pointed the wrong way. A Port Charlotte man’s marital settlement agreement contained mutual releases of “all rights” in the other’s property. He assumed that covered his own home. It did not, because the statute defines that language as a waiver in the property of the other spouse. His plan was rewritten to name the property and state the direction of the waiver explicitly.

The deed built on the old case. A Palm Beach family brought in a 2002 deed moving each spouse’s half into separate revocable trusts. The deed used ordinary conveyancing words, which an earlier decision had once treated as sufficient and a later one publicly doubted. Because both spouses were living, a corrective deed carrying the current statutory sentence closed the question for a few hundred dollars instead of leaving it for the estate.

Sources of Law

• Fla. Const. Art. X §4(c) (restriction on devise of homestead; spousal joinder for alienation).
• Fla. Stat. §732.702(1) to (3) (waiver of spousal rights; two subscribing witnesses; “all rights” reaches the property of the other; fair disclosure required only after marriage; no consideration needed). History, s. 1, ch. 74-106 through s. 10, ch. 2024-238. Retrieved 2026-09-14.
• Fla. Stat. §732.7025(1) to (2) (waiver of homestead rights through deed; the statutory sentence; what it does not waive). History, s. 1, ch. 2018-22. Retrieved 2026-09-14.
• Fla. Stat. §732.4015(1) (the restriction being waived) and §732.401 (how the homestead descends when a devise fails).
• Feldman v. Schocket (Fla. 3d DCA, opinion filed September 21, 2022) (two mortgage joinders and a post-death spousal waiver all held ineffective; the court quotes the §732.7025(1) sentence). ⚠ No Southern Reporter citation was assigned in the source we read, and the opinion was not final pending disposition of any timely rehearing motion. Verify the current citation and status before relying on it.
• Thayer v. Hawthorn (Fla. 4th DCA, opinion filed June 21, 2023) (“granted, bargained and sold” in a warranty deed is not a homestead waiver; the drafting attorney’s affidavit cannot correct the deed; the court questions the reasoning of Stone). ⚠ No Southern Reporter citation was assigned in the source we read. Verify before relying on it.
• Friscia v. Friscia, 161 So. 3d 513 (Fla. 2d DCA 2014), opinion filed August 27, 2014 (§732.702(1) “all rights” language waives homestead rights in the property of the other spouse only).
• Stone v. Stone, 157 So. 3d 295 (Fla. 4th DCA 2014) (Fla. Stat. §732.4017 protects only the initial inter vivos transfer; a later disposition of a reverted interest is a devise).
• Case readings are drawn from our own corpus of 177 Florida homestead and tenancy-by-the-entireties opinions read in full, 1890 to 2025. Federal bankruptcy decisions construing Florida law are persuasive, not binding, on Florida courts.
• Advertised fees are honored for 90 days from the posted date. Government costs, meaning recording, documentary stamps and certified copies, are additional and passed through at cost. Fees are not a prediction of outcome.

What I See in These Files

In 14 years of law practice I have never seen one of these waivers fail because someone was careless about the big decisions. They fail on the small ones, and I can usually name which one within a minute of reading the file. A signature captured for one purpose that somebody later asked to do a second job. A phrase that waives everything and therefore names nothing. A deed written the year before the Legislature published the sentence that would have settled it.

I also litigate deeds after they fail, which enhances the practice of drafting deeds. What I take from that record is that a Florida court will not rescue an instrument with testimony about what everyone meant, however sincere, because the recorded deed is what the next buyer and the next lender have to be able to trust. So when a client hands me a waiver, I read it myself rather than accept a summary of it. Avoid assuming that a signature your spouse gave a lender did anything at all for your estate plan.

Updated on September 14, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. General information about Florida law and our posted fees, not legal advice, and no attorney-client relationship is created. The right plan depends on your specific facts, which we confirm at a free consult.