Homestead Exemption Waivers in Florida

Florida’s homestead exemption from creditors cannot be waived in an unsecured agreement. This rule has been the law in Florida for well over a century, dating to the Florida Supreme Court’s 1884 decision in Carter’s Administrators v. Carter, 20 Fla. 558 (1884), and it was most recently reaffirmed in Chames v. DeMayo, 972 So.2d 850 (Fla. 2007). The practical consequence is significant: a clause in a loan agreement, retainer agreement, commercial contract, or any other unsecured instrument that purports to waive the borrower’s or obligor’s homestead exemption is void and unenforceable. A creditor who relies on such a waiver will find that it provides no rights against the debtor’s homestead.

Why the Homestead Exemption Cannot Be Waived

Most constitutional rights can be waived by the holder of the right, provided the waiver is knowing, voluntary, and intelligent. A criminal defendant can waive the right to a jury trial. A civil litigant can waive the right to counsel. The Florida Supreme Court has recognized that the general principle of waivability applies broadly to constitutional protections.

The homestead exemption is different. The Court has consistently held that it cannot be waived in an unsecured instrument because the exemption does not protect only the individual debtor. It also protects the debtor’s family and the State of Florida. The public policy underlying the homestead exemption is to prevent a debtor’s family from being rendered homeless by the debtor’s financial misfortune and to relieve the State of the burden of supporting a dispossessed family. Because the exemption serves these broader interests, the debtor alone cannot surrender it.

In Sherbill v. Miller Manufacturing Co., 89 So.2d 28 (Fla. 1956), the debtors executed a promissory note that stated they “hereby waive the benefit of their homestead exemption as to this debt.” When the debtors defaulted and the creditor sought to enforce the waiver, the Florida Supreme Court refused. The Court observed that no policy of the State is more strongly expressed in the constitution, laws, and decisions than the policy of the exemption laws, and that permitting waivers in unsecured agreements would undermine the constitutional protection the exemption was designed to provide.

Chames v. DeMayo: The Modern Reaffirmation

The most thorough judicial treatment of this issue came in Chames v. DeMayo, where the Florida Supreme Court was asked directly whether it should recede from its longstanding precedent. The case involved an attorney who included waiver language in a retainer agreement with his client. The agreement stated that the client “knowingly, voluntarily and intelligently waives his right to assert his homestead exemption” if the attorney obtained a charging lien for unpaid fees. When the client defaulted, the attorney sought to enforce the waiver.

The creditor presented three arguments for why the Court should reverse course. First, the creditor argued that a 1984 amendment to Article X, Section 4 of the Florida Constitution, which expanded the exemption from protecting only “the head of family” to protecting “a natural person,” changed the nature of the exemption from a family protection into a personal right that could be waived like other personal rights. The Court rejected this argument, holding that expanding the class of protected persons did not signal an intent to permit waivers.

Second, the creditor argued that a national trend had developed in favor of permitting homestead waivers. The Court found the opposite. After surveying other jurisdictions, the Court concluded that the majority of states that had addressed the issue did not permit a general waiver of homestead exemptions in executory contracts.

Third, the creditor argued that the Court’s own precedent permitting the waiver of other constitutional rights logically required permitting the waiver of homestead protection as well. The Court distinguished the homestead exemption from purely personal constitutional rights. While a right that protects only the individual holder may be waived with appropriate safeguards, a right that protects the individual, the family, and the State may not be waived by the individual alone.

The Court concluded by noting that Carter’s Administrators and Sherbill do not absolutely prohibit every form of homestead waiver. What they prohibit is a general waiver in an otherwise unsecured instrument. The Constitution itself prescribes the manner in which the homestead exemption may be waived: by mortgage, sale, or gift. Requiring that any waiver occur in the context of a mortgage ensures that the waiver is knowing, intelligent, and voluntary, because the nature of a mortgage transaction inherently communicates the consequences of pledging one’s home as security.

What Constitutes a Valid Waiver

The only circumstance in which the creditor protection component of the homestead exemption can be validly waived is through a mortgage. When a homeowner executes a mortgage on homestead property, the homeowner voluntarily pledges the home as security for a debt. If the homeowner defaults, the mortgagee may foreclose and force the sale of the homestead to satisfy the mortgage obligation. This is not treated as a “forced sale” within the meaning of Article X, Section 4 because the homeowner consented to the arrangement at the time the mortgage was executed.

The mortgage exception is grounded in practical necessity. Without it, no lender would extend credit to purchase a home, because the lender would have no recourse against the property if the borrower defaulted. The Florida Supreme Court has recognized that mortgages are given as part of reasoned commercial transactions in which the homeowner knowingly gives the lender an interest in the homestead in consideration of the funds needed to acquire the family home.

Beyond mortgages, the other constitutionally prescribed methods of alienation are sale and gift. A homeowner who sells the homestead has voluntarily parted with the property. A homeowner who gifts the homestead has done the same. In each case, the homeowner has acted affirmatively and with knowledge of the consequences. These transactions are fundamentally different from signing a waiver clause buried in the fine print of a commercial loan agreement or service contract.

Spousal Waivers Are Different

It is important to distinguish the creditor protection waiver discussed above from the spousal waiver of homestead rights. The two concepts operate under different constitutional provisions and serve different purposes.

A spousal waiver under Florida Statute § 732.702 or § 732.7025 allows a spouse to waive their rights under Article X, Section 4(c), which governs the devise restrictions and the joinder requirement for alienation during the owner’s lifetime. These waivers are commonly executed in prenuptial agreements, postnuptial agreements, or by joining in a deed with specific statutory waiver language. They affect the relationship between the spouses with respect to the homestead but do not affect the exemption from creditors.

Section 732.7025 expressly states that its 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.” In other words, a spouse who waives devise rights through a deed waiver does not waive the homestead’s protection from judgment creditors. The creditor protection and the spousal protection are separate constitutional functions, and waiving one does not waive the other.

Statutory Exemptions Distinguished

The non-waivability of the homestead exemption applies specifically to the constitutional protection under Article X, Section 4. Florida’s statutory exemptions under Chapter 222, which protect assets such as wages, life insurance proceeds, annuities, and retirement accounts, operate under a different framework. The Florida Bar Journal has noted that statutory exemptions can in some circumstances be attacked by creditors if obtained through fraud, and that waivers of statutory exemptions may be enforced against debtors in certain situations.

The distinction matters because the homestead exemption’s constitutional status gives it stronger protection against both legislative modification and contractual waiver than any statutory exemption. The legislature cannot create new exceptions to the homestead exemption, and private parties cannot contract around it. This constitutional foundation is one of the reasons Florida’s homestead is considered the most protected asset in the country.

Practical Implications

Clients frequently ask about waiver clauses they signed years ago in loan agreements, service contracts, or other commercial documents. These clauses typically state that the borrower or obligor waives all statutory and constitutional exemptions, including the homestead exemption, in the event of default. Under Chames v. DeMayo and its predecessors, these clauses are unenforceable as to the homestead exemption. A debtor who signed such a clause has not forfeited homestead protection and should not be concerned that a creditor will rely on the waiver to force the sale of the home.

Creditors and their attorneys sometimes include these waiver clauses knowing they are unenforceable, either out of habit or in the hope that the debtor will not know the law and will comply voluntarily. From an asset protection planning perspective, the non-waivability of the homestead exemption provides a reliable baseline of protection that cannot be eroded by a debtor’s earlier contractual commitments.