Florida Probate, Trust & Guardianship Litigation

Waiver of Surviving Spouse Rights

Surviving spouse rights in Florida are strongly protected under Florida law.  In order to waive spousal rights under Florida law, a written agreement is required that has certain requirements.

Waiver Via Agreement

Section 732.702, Fla. Stat. (2019) addresses the waiver of spousal rights, including intestate rights, and states:

(1) The rights of a surviving spouse to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate or any of those rights, may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses. The requirement of witnesses shall be applicable only to contracts, agreements, or waivers signed by Florida residents after the effective date of this law.… Unless the waiver provides to the contrary, a waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse, or a complete property settlement entered into after, or in anticipation of, separation, dissolution of marriage, or divorce, is a waiver of all rights to elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate, by the waiving party in the property of the other and a renunciation by the waiving party of all benefits that would otherwise pass to the waiving party from the other by intestate succession or by the provisions of any will executed before the written contract, agreement, or waiver.

(2) Each spouse shall make a fair disclosure to the other of that spouse’s estate if the agreement, contract, or waiver is executed after marriage.…

(3) No consideration other than the execution of the agreement, contract, or waiver shall be necessary to its validity, whether executed before or after marriage.

Notice that a disclosure of assets is required after the marriage, but not before.  This is a subtle, but often-litigated issue, showing the need for a competent attorney to be involved who is familiar with the probate process.


Death During Divorce

In Merli v. Merli, a January 5, 2022 opinion from the Florida Fourth District Court of Appeal, the Court determined that the spouse of a decedent who died intestate in the midst of their divorce proceeding did not waive spousal rights in the partial marital settlement agreement and had intestate spousal rights in the estate.

Decedent was survived by Donna Merli, his surviving spouse, and Richard Merli, his brother.   Decedent died intestate while his divorce proceeding with his wife was pending.  Before his death, Decedent and his wife had entered into a partial marital settlement agreement.

Partial Marital Settlement Agreement

The partial marital settlement agreement divided certain assets, addressed alimony, and provided for the sale of the marital home, but did not contain an agreement to change the spouse’s ownership interest in the marital home.

The family court entered an order adopting the partial marital settlement agreement, but had not entered a final judgment of dissolution of marriage at the time of the husband’s death.

Competing Petitions To Serve As Personal Representative

Richard (decedent’s brother) petitioned the Florida probate court to serve as the personal representative of decedent’s estate.  He asserted that he had priority to serve as decedent’s brother and heir-at-law, and requested that the court, pursuant to the marital settlement agreement, find that the marital home was owned as a tenancy in common between the decedent and the wife.

The surviving spouse counter-petitioned to serve as personal representative on the basis that she was the surviving spouse and the sole beneficiary of decedent’s intestate estate.  The wife moved for summary judgment arguing that the marriage had never been dissolved and that the family court had dismissed the dissolution proceeding upon decedent’s death.

The Florida probate court granted the wife’s motion and appointed the wife as the personal representative of the decedent’s estate.  The court found that the spouse did not waive her rights as surviving spouse under Florida law because the partial marital settlement agreement did not contain any language which could constitute a waiver of spousal rights pursuant to section 732.702(1), Fla. Stat. (2019).

Decedent’s brother argued that the spouse had waived her spousal rights in the partial marital settlement agreement, relying on the phrase “complete property settlement” in section 732.702(1) and on Snow v. Mathews, 190 So. 2d 50 (Fla. 4th DCA 1966) to conclude that the couple’s settlement was evidence of spousal waiver.

The Florida appellate court determined that the brother’s reliance on Snow  was misplaced for three reasons.

First, the subject marital settlement is not a complete settlement as it did not clearly, specifically and explicitly settle all matters of dispute between the parties.

Second, Snow did not address a surviving spouse’s waiver of intestate rights pursuant to section 732.702(1).

Third, in Snow, the married couple’s separation agreement – which included all of their jointly owned property and the marital home – was detailed, specific, and explicitly provided, “‘[U]pon the execution of this agreement each of the parties shall be tenants in common’ … in the described properties, and the agreement shall be binding upon their heirs and personal representatives.”

The Court determined that decedent’s wife was indeed his surviving spouse and had not waived Florida spousal rights by way of the partial marital settlement agreement, stating:

Here, the dissolution proceeding remained pending at the time of the decedent’s death. Thus, when the decedent died, the family court properly dismissed the dissolution proceeding without entering a final judgment. See Marlowe v. Brown, 944 So. 2d 1036, 1039-40 (Fla. 4th DCA 2006) (“The dissolution of marriage action terminated with the death of the husband and the dissolution judge should have dismissed the case upon the wife’s motion.”) (citations omitted). As a result, the decedent’s death left the wife in “[t]he legal position of one whose marriage was terminated by death, and not by a final judgment.” Marlowe, 944 So. 2d at 1040. The partial settlement agreement’s terms do not amount to a binding final decree. Moreover, nothing in the subject partial settlement agreement evinces an intent by either party to waive their intestate rights.

The Court affirmed the Florida probate court’s order granting final summary judgment which recognized the spouse did not waive intestate spousal rights and appointed the wife as personal representative of the decedent’s estate.

Homestead and Post-Death Waiver

The case of Feldman v. Schocket, 3D21-1509 (3rd DCA 2022) provides textbook level guidance for how a spouse may waive (and not waive) homestead rights.  The Decedent directed in her will that her homestead property (not co-owned with her husband) be sold and the proceeds added to the residue.  Clearly, such devise violates the Florida Constitution, because the Decedent was married and therefore the homestead property could not be devised in any fashion except to the surviving spouse, which the will did not do.  But homestead property is subject to waiver, as expressed in several Florida cases.  The Estate argued that the surviving spouse had waived his homestead rights, in the execution of a mortgage, and in the execution of a post-death waiver.

Can Florida Homestead Rights be Waived in a Mortgage?

Yes, if required rules and formalities are followed. Florida homestead rights can be waived in any document, no matter its title.  In the Feldman case, the Decedent mortgaged the property twice, and as required by the Florida Constitution, the spouse joined into the mortgage.  The two mortgage instruments contained identical boilerplate language addressing the spouse’s homestead rights:

Mortgagor, [Schocket], is joining in the execution of this mortgage for the sole purpose of waiving his or her homestead rights under Article X, Section 4 of the Florida Constitution, and shall not be bound by the terms, conditions or warranties contained in this instrument.

The mortgages were notarized, witnessed by two persons, and duly recorded.

The Feldman case held no waiver on two seperate grounds.  First, because the mortgages were executed after the marriage, a waiver of spousal rights required a disclosure of the Decedent’s estate to the waiving spouse.  As the Court held that there had been no disclosure, the Court found the mortgages ineffective to waive homestead rights.

The second ground for holding that the mortgage instruments not a valid waiver of homestead rights was essentially because of the “boilerplate rule.”  As explained:

[n]owhere do the mortgage waivers reference the constitutional prohibition on devise in the event a decedent is survived by a spouse or minor child. Instead, by their plain language, the mortgage waivers were executed for a qualified purpose. Without Schocket’s signature, the mortgages would not constitute a valid lien on the property. See Pitts v. Pastore, 561 So.2d 297, 301 (Fla. 2d DCA 1990). Thus, his signature was necessary to facilitate the constitutionally permissible purpose of “alienat[ing] the homestead by mortgage.” See art. X, § 4(c), Fla. Const.

Further, in Chames v. DeMayo, 972 So.2d 850 (Fla. 2007), echoing the words of this court, Justice Cantero sagaciously cautioned against enforcing boilerplate homestead waivers buried within documents of other legal significance:

[T]he waiver of the homestead exemption will become an everyday part of contract language for everything from the hiring of counsel to purchasing cellular telephone services. The average citizen, who is of course charged with reading the contracts he or she signs . . . often fails to read or understand boilerplate language detailed in consumer purchase contracts, language which the contracts themselves often permit to be modified upon no more than notification in a monthly statement or bill. . . . [S]uch consumers may lose their homes because of a “voluntary divestiture” of their homestead rights for nothing more than failure to pay a telephone bill. This inevitably will result in whittling away this century old constitutional exemption until it becomes little more than a distant memory.

Id. at 862 (alterations in original) (quoting DeMayo v. Chames, 30 Fla.L.Weekly D2692, D2695-96 (Fla. 3d DCA Nov. 30, 2005) (Wells, J., dissenting)).

In this case, the qualified mortgage waivers were buried within documents of other legal significance. Under these circumstances, we conclude, as did the trial court, that the mortgage waivers are procedurally deficient and insufficient to “evince an intent by [Schocket] to waive [his] homestead rights.” Rutherford, 679 So.2d at 330.

Is a Post – Death Waiver of Spousal Homestead Rights Effective?

No, because homestead vests at death.

A few weeks after death, the Personal Representative of the Estate asked the surviving spouse to execute a waiver of homestead rights.  That “waiver” provided as follows:

I, JEFFREY SCHOCKET, herby [sic] waive, any and all right, title, and interest I have in the property . . . . Specifically . . . any rights, title and/or interest that I may have to claim that the aforementioned property is exempt and/or excluded from my wife, Patricia M. Silver’s estate pursuant to Florida Statute §732.401 or Florida Statute §732.4015.

The Court explained three separate and distinct reasons why the post-death waiver was ineffective to waive homestead rights:

Although the post-death spousal waiver contains more expansive language than the mortgage waivers, as indicated previously, it, too, fails for a myriad of reasons. First, as previously noted, despite the fact that it was executed after marriage, it was not accompanied by fair disclosure of Silver’s estate. See § 732.702(2), Fla. Stat. Second, section 732.702(1), Florida Statutes, anticipates that a party will contract with “a present or prospective spouse” or in anticipation of “separation, dissolution of marriage, or divorce.” The statute does not contemplate contracting with a deceased spouse. Third, in placing their imprimatur upon waiver, courts have embraced the legal fiction that a waiver executed before or during marriage is the “legal equivalent of the prior death of the [spouse].”  This legal fiction removes the constitutional impediment to devising the homestead property. In the absence of a waiver, however, the property passes by operation of law to the surviving spouse upon the death of the decedent.  Here, because the mortgage waivers failed, Schocket’s property interest vested upon Silver’s death. Thus, the post-death spousal waiver was too little, too late.

That last point cannot be emphasized enough, as the rule is often overlooked in the administration of estate in Florida:  Florida homestead property vests at the moment of death, if devised or descends to anyone who is an heir at law.  Because the surviving spouse already owned the property at the moment of death (even though no document so stated), only a deed would have been sufficient to transfer the surviving spouse’s interest.

Florida Homestead Rights Subject to Disclaimer

Remember the rule just explained, that homestead vests at death and therefore a waiver could have no effect?  Not true in every case, because a very special type of waiver, known as a “Disclaimer,” can operate to undo the vesting of homestead rights at death.  The Florida Uniform Disclaimer of Property Interests Act, found at Florida Statutes 739.101 et seq., provides detailed rules on disclaiming property from an estate.

Section 739.201(1) provides:

(1) The disclaimer takes effect as of the time the instrument creating the interest becomes irrevocable or, if the interest arose under the law of intestate succession, as of the time of the intestate’s death.

So yes, homestead rights can be disclaimed, if done properly.  Section 739.104 sets forth a portion of what is required for a valid disclaimer:

(3) To be effective, a disclaimer must be in writing, declare the writing as a disclaimer, describe the interest or power disclaimed, and be signed by the person making the disclaimer and witnessed and acknowledged in the manner provided for deeds of real estate to be recorded in this state. In addition, for a disclaimer to be effective, an original of the disclaimer must be delivered or filed in the manner provided in s. 739.301.

In order to qualify as a disclaimer, the instrument must be “acknowledged in the manner provided for deeds of real estate to be recorded in this state.”  Section 695.03 provides as follows:

695.03 Acknowledgment and proof; validation of certain acknowledgments; legalization or authentication before foreign officials.—To entitle any instrument concerning real property to be recorded, the execution must be acknowledged by the party executing it, proved by a subscribing witness to it, or legalized or authenticated in one of the following forms:

(1) WITHIN THIS STATE.—An acknowledgment or a proof may be taken, administered, or made within this state by or before a judge, clerk, or deputy clerk of any court; a United States commissioner or magistrate; or any notary public or civil-law notary of this state, and the certificate of acknowledgment or proof must be under the seal of the court or officer, as the case may be.

Section 739.301, regarding the delivery or filing requirement provides:

(2) In the case of a disclaimer of an interest created under the law of intestate succession or an interest created by will, other than an interest in a testamentary trust:

(a) The disclaimer must be delivered to the personal representative of the decedent’s estate; or

(b) If no personal representative is serving when the disclaimer is sought to be delivered, the disclaimer must be filed with the clerk of the court in any county where venue of administration would be proper.

The Feldman Court explained why the waiver in the case could not operate as a valid disclaimer:

Critically, the waiver is not statutorily compliant. It does not purport to be a disclaimer, it was not acknowledged before “a judge, clerk, or deputy clerk of any court; a United States commissioner or magistrate; or any notary public or civil-law notary of this state,” and it was not recorded. § 695.03(1), Fla. Stat.; see § 739.104(3), Fla. Stat.; § 695.26(1), Fla. Stat. (2022). The disclaimer statute makes no provision for partial compliance.

The ruling in the Feldman decision may seem a little hypertechnical at first, but perhaps not really.  The estate was arguing that the surviving spouse gave up his valuable homestead rights for nothing in return.  For persons to give up their homestead rights, such an act must be obvious, not buried in boilerplate language in a complex and lengthy document.  And the surviving spouse explained how he viewed the post-death waiver document:

According to Schocket, Feldman informed him that signing the document would enable the Estate to “pay the bills to maintain the house” and allow Feldman to serve as executor. Schocket attested he “didn’t read the document” and “wasn’t aware of [his] rights or interest in the property at that time.”…

So the Court’s strict enforcement of the highly technical disclaimer statute is for a reason, in that people do not read or understand documents they are asked to sign.  The requirements of the formalities of witnesses, a notary, having the disclaimed property effectively identified, and the delivery requirements, these all serve to place the disclaiming person on notice that something important is taking place, and perhaps caution should be exercised.

Oral Argument at 5th District Court of Appeals

Jeffrey Skatoff

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(561) 842-4868


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