Many of my clients purchased their house before marriage (or even during marriage but only in one spouse’s name) and now want to include that property in their estate plan – possibly by doing a Lady Bird Deed.
No big deal, right? Think again. If the house is your homestead, you need your spouse’s permission to sign the house over to someone else.
Assuming you and your spouse are on the same page with this transaction, having your spouse sign the appropriate portion of the deed.
Luckily, Florida now has a statute dealing with very issue.
Florida Statute § 733.7025 provides the language for a “waiver of 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.”
(2) The waiver language in subsection (1) may not be considered a waiver of the protection against the owner’s creditor claims during the owner’s lifetime and after death. Such language 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.
Are you in this situation? If so, give us a call and we’d be happy to make sure you’re on the right track with making sure your intention are met.