Homestead Planning Under Florida’s New “Safe Harbor” Statute: What Families and Practitioners Need to Know

Florida homestead law has always been powerful, and maddening.

On one hand, it protects Florida families from creditors and from being disinherited out of the family home. On the other hand, those same protections can blow up carefully crafted estate plans and real estate transactions if homestead issues are not handled correctly.

In 2018, the Florida Legislature added a new tool to the homestead planning toolbox: F.S. §732.7025, sometimes called the “safe harbor” homestead waiver statute. It provides a simple, statutory way for a spouse to waive certain homestead inheritance rights directly in a deed, using specific language.

But this is not an “easy button.” It doesn’t waive all homestead rights. It doesn’t eliminate ethical and planning concerns. And used carelessly, it can create the exact nightmare scenarios it was intended to prevent.

This article breaks down the Florida safe harbor deed waiver, explains F.S. 732.7025, and shows how this powerful Florida homestead waiver fits into broader estate planning.

 

What Is Florida’s Safe Harbor Homestead Waiver (F.S. 732.7025)?

1. What Does the New “Safe Harbor” Statute Actually Do? (F.S. §732.7025)

Before the statute, Florida already had F.S. §732.702, which allows spouses to waive homestead rights (and other spousal rights) by written contract, agreement, or waiver (typically via prenuptial or postnuptial agreements).

New F.S. §732.7025, effective July 1, 2018, adds a simplified method: A spouse can waive inheritance-related homestead rights inside the deed itself, by including special statutory language.

The safe harbor language in §732.7025(1) is intentionally short and clear:

“By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse from devising the homestead property described in this deed to someone other than me.”

A few key points:

• The waiver is limited to devise (inheritance) restrictions – it allows the owner to leave homestead to someone other than the surviving spouse when the constitution would otherwise block that.
• It does not waive:
  • Homestead asset protection from creditors.
  • Restrictions on lifetime alienation (the need for spousal joinder to sell, gift, or mortgage homestead).
  • Other spousal inheritance rights like elective share.

In short: §732.7025 provides a “safe harbor” way to waive the spouse’s homestead inheritance rights via deed, while leaving other homestead protections intact.

 

2. Refresher: Florida Homestead Law Inheritance for Surviving Spouses

The Florida homestead law inheritance rules are rooted in the Florida Constitution, Article X, §4(c). The core rule:

If the owner is survived by a spouse or minor child, the homestead generally cannot be devised (left by will or trust) to anyone other than the spouse. If there are no minor children, the owner may devise the homestead to the spouse.

If a devise is not permitted or fails, F.S. §732.401 steps in and dictates what happens:

• Default rule: Homestead descends like other intestate property.
• If survived by spouse and one or more descendants: The spouse normally receives a life estate, and the remainder goes to the decedent’s then-living descendants, per stirpes.
• The spouse has six months after death to elect instead to take a 50% tenant-in-common interest, rather than a life estate.

What counts as a “devise”? Under F.S. §731.201(10), “devise” includes testamentary transfers by will or trust (including homestead in a revocable trust). F.S. §732.4015 clarifies that:

• “Owner” includes the settlor of a revocable trust, and
• “Devise” includes a disposition by trust of property that would be homestead if titled directly in the settlor’s name.

So homestead planning isn’t just about deeds and wills. It also includes revocable trust planning, and the homestead restrictions follow the property even into the trust.

 

3. Why Waivers of Homestead Rights Are So Sensitive (Constitutional Protection)

Homestead is not just a private right; it is a constitutional protection with public policy behind it.

Florida courts have repeatedly recognized that homestead:

• Protects both the debtor and the debtor’s family.
• Promotes the stability and welfare of the state.
• Keeps families from being left destitute by financial misfortune or creditor claims.

In Chames v. DeMayo, the Florida Supreme Court stressed that:

• Many constitutional rights can be waived, but rights that protect both the individual and the public must be treated differently.
• The homestead exemption is not purely personal; it serves broader public purposes.

So whenever a spouse “waives homestead rights,” courts want to see a knowing, intelligent, voluntary waiver, not something buried in fine print or done by accident. That is the tension the safe harbor statute tries to address: give practitioners a clear way to document a knowing waiver while preserving space for judicial review where appropriate.

 

4. How Homestead Rights Were Waived Before the Safe Harbor Statute

Before §732.7025, most homestead waivers relied on F.S. §732.702, the general spousal rights waiver statute. Under §732.702:

• A waiver of “all rights” is generally sufficient to waive all spousal rights, including homestead.
• If executed after marriage, each spouse must make fair disclosure of their estate to the other.
• No consideration is required for the waiver to be valid.

These waivers usually appear in: Prenuptial agreements, Postnuptial agreements, or Marital settlement agreements.

The safe harbor statute does not replace §732.702. Instead, it adds another option: a deed-based waiver for devise restrictions, with precise language. In many cases, the best practice will still be: Use a deed with safe harbor waiver language, plus a separate postnuptial agreement under §732.702 for added clarity and protection.

 

5. Can Just Signing a Deed Waive Homestead Rights? (Case Law History)

Even before §732.7025, Florida appellate courts wrestled with the question: Does merely joining in a deed amount to a waiver of homestead inheritance rights?

Two key cases often cited:

• Habeeb v. Linder – Initially suggested that joining in a deed to a spouse’s revocable trust may have waived homestead rights. The opinion was later withdrawn and is not precedent, but the reasoning influenced later debate.
• Stone v. Stone – The Fourth DCA held that a spouse did waive homestead rights by joining in deeds conveying homestead interests to Qualified Personal Residence Trusts (QPRTs), often citing references to “hereditaments.”

What these cases show: Courts have, in some situations, treated joinder in a deed as a waiver of homestead inheritance rights, even without explicit waiver language. None of these cases clearly addressed the financial disclosure requirements in §732.702 or fully spelled out the standard for a knowing and intelligent waiver.

The new safe harbor statute does not say that deeds without the statutory language are never waivers, nor that deeds with the language are absolutely unchallengeable. It gives a structured way to show intent, but it does not eliminate the need for case-by-case analysis.

 

6. Is the Safe Harbor Truly “Safe”? Legal Presumptions and Challenges

Florida cannot make homestead rights disappear by irrebuttable presumption. That would raise serious constitutional concerns.

In Estate of Roberts, the Florida Supreme Court upheld §732.702 on the basis that it creates at most a rebuttable presumption of waiver, spouses still have access to the courts to challenge whether a waiver was valid.

Realistically, here’s how the safe harbor will likely be treated:

• A deed that includes the safe harbor statutory language strongly supports a finding that the spouse knowingly waived homestead devise restrictions.
• A surviving spouse may still argue lack of capacity, undue influence, fraud, or failure of disclosure in appropriate cases.
• Deeds without the safe harbor language may still be argued to be waivers under case law like Stone, depending on the facts.

Bottom line: the safe harbor increases predictability, but it’s not a magic shield against all challenges.

 

7. Title Insurers and Closing Lawyers: Guidance on Safe Harbor Deeds

In the real world of busy closings and tight timelines, homestead issues can wreak havoc. Title insurers have traditionally been conservative about treating prenuptial or postnuptial agreements as full waivers without judicial approval. The Stone and Lyons cases reinforced the idea that courts need to review both:

• Homestead status at death, and
• The validity of any waiver, especially where constitutional rights are involved.

The new statute helps by:

• Giving underwriters and closing attorneys a clear check-the-box clause to look for in deeds.
• Making it easier to argue that the waiver was knowing and voluntary, reducing uncertainty around title after the owner’s death.

Failure to adhere to underwriting guidelines can expose the closing attorney or title company to liability if a waiver later proves to be invalid.

 

8. Ethical and Practice Considerations for Lawyers

Drafting a deed with safe harbor waiver language is not a simple clerical exercise. Key ethical questions include:

• Who is the client? The grantor? The grantee? Both spouses jointly? Joint representation always carries potential conflicts of interest.
• Was separate counsel recommended for the waiving spouse?
• Is the scope of representation clear? Did the lawyer review title, tax implications, creditor issues, and overall estate planning impact, or were those outside the scope?
• Was the limited scope documented?

Preparing a deed that alters constitutional rights is not a “cheap form” task. The lawyer may be on the hook if future disputes arise. In many cases, best practice may be: Use the safe harbor waiver language only where absolutely appropriate, document the counseling thoroughly, and pair the deed with a carefully drafted postnuptial agreement and/or will/trust provisions.

 

9. Practical Applications and Risks in Estate Planning

The power of §732.7025 really shows up in estate planning scenarios, especially where:

• Spouses want to deviate from the default life estate/remainder pattern in §732.401.
• Homestead is being used to fund credit shelter trusts, QPRTs, or blended family plans.
• Reverse mortgages or special financing structures intersect with homestead rules.

Scenarios and Outcomes

Example A – Blended Family / Credit Shelter Trust

• Goal: Husband’s revocable trust gives wife lifetime use of homestead, then passes the home to wife’s children from a prior marriage.
• Prior Law Risk: §732.401 could override the plan, giving the wife a constitutional life estate with remainder to husband’s descendants, ignoring the agreed plan.
• With Safe Harbor: Including statutory waiver language in the deed makes it far more likely that the plan under the trust will stand, honoring the spouses’ actual intentions.

Example B – Reverse Mortgage and Age Restrictions

• Goal: Husband qualifies for a reverse mortgage; wife is too young. She quitclaims her interest to him so the loan can close.
• Prior Law Risk: Homestead rules could override the will and push ownership in a different direction than intended (e.g., to all children), triggering probate and conflict.
• With Safe Harbor: If the wife’s deed to the husband contains the statutory waiver language, the husband’s will plan is far more likely to control, and the lender’s expected structure becomes more secure.

Example C – Disabled Spouse and Poor Planning

• Goal: Husband deeds home to his revocable trust; wife joins. Trust leaves home to husband’s children. Husband believes he’s “protecting” his disabled wife by making sure she owns no assets.
• Risk: If the deed is treated as a valid waiver, the wife could be left without homestead protections and potentially with no place to live if the children enforce the trust plan.

Lesson: Safe harbor language can cut in both directions. It must be paired with careful counseling and additional planning, not used reflexively. This flexibility comes with real risk if spouses don’t fully understand what they are giving up.

 

10. Key Takeaways and Checklist for Homestead Planning

For practitioners and informed clients, here’s a practical checklist:

1. Understand what is being waived. §732.7025 primarily addresses devise (inheritance) restrictions, not creditor protection or lifetime alienation rules.
2. Use the statutory language exactly. Deviations from the safe harbor wording may undermine the statute’s purpose and create ambiguity.
3. Consider combining tools. Use a deed with safe harbor waiver plus a postnuptial agreement under §732.702 for added clarity and protection.
4. Be cautious with joint representation. Consider recommending separate counsel for the waiving spouse, especially where the plan significantly alters their homestead protections.
5. Follow title underwriting guidelines. Always clear homestead waivers with underwriting counsel when issuing title insurance or handling complex transactions.
6. Remember: homestead is still a “legal chameleon.” Homestead status can change over time; facts matter. Revisit homestead planning when circumstances or ownership structures change.

Florida’s homestead safe harbor statute gives planners and families a powerful new way to coordinate homestead rights with modern estate planning. Used wisely, with clear counseling, careful drafting, and ethical safeguards, it can prevent unintended results and reduce litigation. Used casually or without full understanding, it can have the opposite effect.

Either way, the message is the same: homestead waivers are constitutional-level decisions, not just boilerplate language in a deed.

 

FAQs: Florida’s Homestead “Safe Harbor” Deed Statute

Q: Does using the safe harbor language in a deed waive all of my homestead rights?
No. The safe harbor language focuses on devise restrictions, which allow your spouse to leave the homestead to someone other than you. It does not automatically waive creditor protection, the elective share, or the requirement of spousal joinder for lifetime transfers.

Q: If we don’t use the safe harbor language, can a deed still count as a waiver?
Possibly. Courts have, in some circumstances, found that certain deeds (especially those using broad language like “hereditaments”) operated as waivers. But without the statutory language, there’s more uncertainty and a higher chance of litigation.

Q: Should we always add the safe harbor language whenever a spouse joins in a deed?
No. The statute is a tool to be used selectively, not a default. Whether to use it depends on the couple’s estate plan, family structure, and long-term goals. It should only be used after careful counseling.

Q: Is a prenup or postnup still necessary if we use the safe harbor language?
In many cases, yes, or at least strongly advisable. A postnuptial agreement under §732.702 can reinforce the waiver, address other rights (elective share, etc.), and provide additional protection against claims that the waiver was not knowing or voluntary.

Q: Can a surviving spouse ever challenge a safe harbor waiver?
Yes. While the statutory language makes it harder to claim there was no waiver, a surviving spouse may still challenge based on lack of capacity, undue influence, fraud, or other defects in how the waiver was obtained.

Florida’s homestead safe harbor statute gives planners and families a powerful new way to coordinate homestead rights with modern estate planning. Used wisely with clear counseling, careful drafting, and ethical safeguards, it can prevent unintended results and reduce litigation. Used casually or without full understanding, it can have the opposite effect.