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Can They Do That?

In Florida, spouses who co-own homestead property are considered Tenants by the Entirety. As such, each spouse individually is considered to own the “entire” property thus being treated as a single legal entity. So, if Husband and Wife own a homestead property, they each have a 100% ownership interest in their homestead.

Since both spouses each own their entire homestead in Florida, it naturally follows that Florida law prevents one spouse from transferring or alienating their homestead without the consent of the other. Florida law also imposes a legal requirement providing that if the owner of a homestead property is survived by a spouse or minor child, the homestead must pass as a life estate to the surviving spouse with a remainder to the owner’s descendants.[1]

Despite these stringent legal requirements, many clients may wish to transfer their homestead in a different method. While deviating from Florida’s default legal requirements is possible, effectively doing so calls for an extremely careful legal analysis of the rights of the parties involved and the method in which a client seeks to transfer or alienate the property.

For instance, the Florida Statutes provide that spouses are free to contractually waive their homestead rights[2] and many spouses often do so in second marriages or in marriages where a spouse has children from a previous marriage. While there appears to be a clear-cut avenue for waiving homestead rights among spouses outlined in the Florida Statutes, successfully doing so requires meeting the additional requirements of “Fair Disclosure” and “Legally Sufficient Waiver” which have become a subject of litigation in and of themselves.

If you are considering transferring, alienating or encumbering your homestead property, it is imperative that you seek the advice of a qualified Florida attorney. We look forward to hearing from you and assisting you with your homestead-related matters.

[1] Fla. Stat. §732.4015(1). [2] Fla. Stat. §732.702.