What Rights Does a Spouse Have in a Florida Homestead?

Your spouse has significant legal rights in their Florida homestead regardless of whether they own the property. A non-owner spouse has legal protections during their lifetime and inheritance rights after the homestead owner’s death.

What Gives a Spouse Homestead Rights?

Occupancy is the key to establishing homestead rights in Florida. In many marriages, one spouse or the other owns and has legal title to the couple’s homestead.

A married person does not have to own their home to claim homestead rights. All married spouses have legal homestead protections and rights in the Florida property they occupy as their primary residence.

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Lifetime Homestead Protections

Your homestead property is exempt from forced sale by creditors. A creditor holding a civil judgment against an owner-spouse may not force the sale of the home. A non-owner spouse’s home is protected from legal problems incurred by the owner spouse.

Of course, voluntary lienholders, such as mortgage lenders, may foreclose on the homestead if the mortgage loan is not paid.

An owner-spouse may not sell or mortgage the couple’s homestead without their spouse’s consent. This rule prevents an owner-spouse from unilaterally selling or mortgaging the couple’s home during the marriage.

Homestead Rights of Surviving Spouse

A surviving spouse has homestead protection regardless of whether they owned a home during marriage. If the homestead owner is survived by their spouse or a minor child, the homestead cannot be devised by will or living trust to anyone else. Absent minor children, the homestead can be devised entirely to the surviving spouse.

If the homestead owner dies without a valid will, his surviving spouse receives an automatic life estate in the marital homestead. Or, the surviving non-owner spouse can elect a 50% interest in the homestead as a tenant in common with the owner-spouse’s descendants.

Can You Waive Florida Homestead Rights?

Either spouse may legally waive their homestead rights in a written agreement signed in the presence of two witnesses. Waivers are often executed before the marriage as part of a prenuptial agreement. Such waivers may also be signed during the marriage.

Florida Statute 732.7025 provides a streamlined method of waiving homestead rights by joining in a deed that includes specific waiver language.

Summary of Spouse’s Florida Homestead Rights

Florida law provides married couples substantial legal protections of their Florida homestead. Your protections do not require your name to be on the house’s legal title.

You may legally waive your protections. We caution our clients to consult a Florida attorney before signing any document related to your homestead.

About the Author

Gideon Alper is an attorney who specializes in asset protection planning. He graduated with honors from Emory University Law School and has been practicing law for almost 15 years.

Gideon and the Alper Law firm have advised thousands of clients about how to protect their assets from creditors.