Shareholder
In Weaver v. Hatfield, 50 Fla. L. Weekly D2484 (Fla. 1st DCA 2025), the First District addressed a scenario that often surprises litigants: Florida’s homestead protections are powerful—but they are not indestructible. A spouse may validly waive homestead rights during life, and once waived, those rights cannot be resurrected after the property has been sold.
The case involved a married couple who executed a deed transferring residential property solely to the wife. In that deed, the husband expressly waived all marital and homestead interests in the property. The wife later sold the property to a third party. After her death, the husband attempted to assert homestead rights under Florida’s probate statutes, arguing that the property should have passed to him notwithstanding the earlier deed.
The trial court rejected that argument, and the First DCA affirmed.
The appellate court explained that Florida law draws a clear distinction between alienation during life and devise at death. While Florida strictly limits a person’s ability to devise homestead property by will, the law fully permits a homeowner—and the spouse—to alienate homestead rights during life, including through deeds that expressly waive homestead protections.
Because the husband knowingly waived his homestead rights in the deed, and because the property was sold during the wife’s lifetime, the probate homestead statutes did not apply. Those statutes protect against improper testamentary devises; they do not undo valid lifetime conveyances.
Practice pointers
Homestead can be waived—but only if done clearly. Express language waiving homestead and marital rights in a deed is enforceable.
Probate protections are not retroactive. Statutes governing homestead devises apply at death, not to property that was validly conveyed while the owner was alive.
Title and estate planning must align. Deeds, waivers, and estate plans should be reviewed together to avoid surprises years later.
For litigators, focus on timing. Whether the transfer occurred during life or at death often decides the case before deeper homestead analysis is required.
Takeaway: Florida homestead rights are robust, but they are not immutable. A valid, express waiver during life is effective—and courts will not allow a surviving spouse to reclaim homestead rights after the property has already been sold.
Homestead disputes frequently arise at the intersection of real estate, probate, and litigation. We help clients assess whether homestead rights were preserved, waived, or extinguished long before a dispute reaches the courtroom.
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