Spousal Consent and Homestead Rights

Florida’s homestead law gives a married person’s spouse significant legal rights in the couple’s primary residence, regardless of whether the spouse holds title. These rights operate during the marriage, at the time of any conveyance or encumbrance, and after the owner’s death. Article X, Section 4(c) of the Florida Constitution requires spousal joinder for any sale, mortgage, or gift of homestead property, and the devise restrictions in the same provision prevent a homeowner from disinheriting a surviving spouse through a will. Understanding these protections is essential for asset protection planning because they constrain how homestead property can be transferred, encumbered, or devised.

The Non-Owner Spouse’s Interest

A spouse who does not hold legal title to homestead property still has a constitutionally protected interest in the property. Florida law does not require both spouses to be on the deed for the non-owner spouse to have homestead rights. If one spouse owns the home in their individual name and the couple occupies it as their primary residence, the non-owner spouse has rights that cannot be defeated by the titleholder acting alone.

These rights include the right to consent before the property is sold, mortgaged, or given away during the owner’s lifetime, and the right to inherit a protected interest in the property after the owner’s death. The non-owner spouse’s interest exists by operation of the Florida Constitution and does not depend on any deed, contract, or filing. Occupancy of the property as a primary residence is the key factual predicate. Even if the non-owner spouse moves out while the couple remains legally married, Florida courts have held that spousal joinder is still required for any conveyance or encumbrance of the homestead.

The Joinder Requirement

Article X, Section 4(c) provides that the owner of homestead real estate, “joined by the spouse if married, may alienate the homestead by mortgage, sale or gift.” This language has been interpreted to mean that any deed, mortgage, or other conveyance of homestead property by a married owner is invalid unless the non-owner spouse signs the instrument. The requirement applies to sales, refinancings, gifts, transfers to trusts, and any other transaction that alienates or encumbers the homestead.

From a practical standpoint, Florida title companies will not issue a title insurance policy on homestead property unless the non-owner spouse has joined in the deed or mortgage. A deed executed without spousal joinder is voidable and creates a title defect that can be challenged by the non-signing spouse. Similarly, a mortgage executed without spousal joinder may be unenforceable against the non-signing spouse’s homestead interest, which creates significant problems for lenders.

The joinder requirement applies even in situations that might seem to make it unnecessary. If the spouses are living separately but not yet divorced, the non-owner spouse must still join in any conveyance. If the non-owner spouse lives in another state, joinder is still required. If the couple has filed for dissolution of marriage but no final judgment has been entered, the marriage remains intact and the joinder requirement remains in effect. Only a final judgment of dissolution of marriage terminates the spousal joinder requirement.

It is important to understand what the non-owner spouse’s signature on a mortgage means and does not mean. When a non-owner spouse signs a mortgage on homestead property, the spouse is consenting to the lien on the property. The spouse is not becoming a borrower, is not personally liable for the debt, and is not being added to the title. The spouse signs the mortgage (the lien instrument) but typically does not sign the note (the promise to repay).

Spousal Rights After Death

The Florida Constitution also restricts how homestead property can be devised in a will. If the owner is survived by a spouse or minor child, the homestead “shall not be subject to devise” except that it may be devised to the owner’s spouse if there is no minor child. This means that a married homeowner with minor children cannot devise the homestead to anyone, including the spouse. If the homeowner is survived by a spouse but no minor children, the homestead can be devised only to the surviving spouse.

When a homestead owner dies survived by a spouse and descendants (adult children or grandchildren), the surviving spouse may elect one of two options under Florida Statute § 732.401: a life estate in the homestead with a vested remainder to the descendants, or an undivided one-half interest in the homestead as a tenant in common with the descendants. This election must be made within the time period specified by statute. If the homeowner dies without a will and is survived by a spouse but no descendants, the surviving spouse inherits the homestead outright. The details of these inheritance provisions are discussed more fully on our page covering homestead after death.

From an asset protection perspective, the devise restrictions are significant because the homestead remains exempt from the owner’s creditors after death only if it passes to a constitutionally protected heir. A homestead that is properly devised or that descends by intestacy to the surviving spouse or heirs continues to be protected from estate creditors under the inurement provision of Article X, Section 4(b). A devise that violates the constitutional restrictions is void, and the homestead passes as if no will existed.

Waiver of Homestead Rights

A spouse may waive their homestead rights, but the waiver must satisfy specific requirements to be effective. Florida recognizes two principal methods of waiver.

The first is a written agreement under Florida Statute § 732.702. This provision allows a spouse to waive spousal rights, including homestead rights, through a written contract, agreement, or waiver. Prenuptial and postnuptial agreements commonly include homestead waivers. If the agreement is executed after marriage, each spouse must make a fair disclosure of their estate to the other spouse. No consideration is required for the waiver to be valid.

The second is a simplified waiver through joinder in a deed under Florida Statute § 732.7025, which became effective July 1, 2018. This statute provides that a spouse waives their surviving spouse rights with respect to the devise restrictions if the deed includes specific statutory language. The required language states that by executing or joining in the deed, the spouse intends to waive homestead rights as provided by law. This method is frequently used when a homeowner transfers homestead property to a trust or conveys a remainder interest through a lady bird deed.

An important limitation of the § 732.7025 waiver is that it applies only to the devise restrictions under Article X, Section 4(c). The statute expressly 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.” In other words, a spouse who waives devise rights through a deed waiver still retains the right to consent to any future sale or mortgage and still benefits from the creditor protection the homestead exemption provides.

Implications for Asset Protection Planning

The spousal consent and rights provisions create both protections and constraints for asset protection planning. On the protective side, the joinder requirement prevents one spouse from unilaterally transferring homestead property to defeat the other spouse’s interest, which can be valuable in situations involving marital discord or undue influence by third parties. The devise restrictions ensure that the homestead passes to constitutionally protected heirs who will continue to benefit from creditor protection after the owner’s death.

On the constraining side, the joinder requirement means that any asset protection strategy involving the homestead requires both spouses to cooperate. A transfer of homestead property to a trust, a conveyance of a remainder interest, or a mortgage for the purpose of extracting equity all require the non-owner spouse’s signature. If the spouses disagree about the appropriate planning strategy, the joinder requirement effectively gives the non-owner spouse a veto over any transaction involving the homestead.

For couples where only one spouse faces significant creditor exposure, the interaction between homestead protection and tenancy by the entirety protection can provide overlapping layers of security. If the homestead is owned jointly as tenants by the entirety, it is protected from the creditors of either individual spouse under both the homestead exemption and the entirety ownership. If the homestead is owned by only one spouse, it remains protected from that spouse’s creditors under the homestead exemption, and the non-owner spouse’s constitutionally protected interest adds an additional barrier to any creditor’s attempt to reach the property.