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Homestead and Habeeb: Waiver of Spousal Rights by Warranty Deed

Published: February 24th, 2011

By: Dana M. Apfelbaum

In a case of first impression, the Third District Court of Appeal of Florida issued an opinion in Habeeb v. Linder on February 9, 2011, finding that a warranty deed executed by Husband and Wife to only Wife constituted a waiver of all Husband’s spousal rights in the property, including spousal homestead rights. Although in this case, Husband and Wife seemingly knew what they were doing and fully meant to waive Husband’s spousal homestead rights, professionals and clients alike should be aware of this decision to avoid potential serious, unintended consequences.

Husband and Wife in Habeeb had been married approximately twenty years when, in 1979, they executed a deed transferring their Key Biscayne condo, owned as tenants by the entirety, to Wife alone. In 2006, Wife executed a will devising a life estate in the condo to Husband and the remainder to her sister. A few years later, Husband and Wife both passed away in short succession. Husband’s personal representative then challenged the devise of the condo under Wife’s will, claiming that it should have passed by law to her surviving spouse.

Although Article X, section 4(c) of the Florida Constitution clearly affords a surviving spouse rights in the homestead, Section 732.702 of the Florida Statutes just as clearly allows waiver of those rights. A prenuptial agreement that includes such a “waiver” is one way to relinquish your homestead rights, but there are other ways to skin that cat.  The court found that the warranty deed in question satisfied the requirements of a valid waiver the statute.

While the court used Section 732.702 as in effect in 1979 in its opinion, the effect would be the same under today’s statute if the written contract, agreement, or waiver is signed by the waiving spouse in the presence of two subscribing witnesses, which is the same requirement for the execution an effective deed.  Therefore, it appears there is no real chance of transferring property owned by spouses without also having a waiver of spousal rights. The only doubt cast upon that conclusion rests on the wording of the Habeeb warranty deed, which transferred the land as well as “all the tenements, hereditaments and appurtenances thereto.”  The court explicitly stated that the term “hereditaments” includes homestead rights, and, as a consequence, we do not know whether there would be a waiver of homestead rights if hereditaments are not included in the transfer of property.

I wouldn’t bet the farm (or the homestead, for that matter) on the term “hereditaments”, and wise grantors will make sure that they give away only what is intended.