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Your Florida Title: Spotlight on Marital Property

Protecting your largest asset

The Florida Constitution restricts a property owner's ability to give his or her property to his heirs under a will if the property is homestead.

The owner cannot devise homestead -- give it away under a will -- if the owner has a surviving spouse or minor child. It's more complicated than that and there are exceptions. There are some exceptions and circumstances where the rule doesn't apply. But it's confusing.

And when the property owners are preparing their wills and trusts, they face the question of whether a spouse can waive these restrictions on homestead property when the husband and wife convey the homestead property to themselves as trustees of a trust.

Section 723.7025, Florida Statutes, effective July 1, gives guidance and says:

  • A spouse waives his or her rights as a surviving spouse with respect to the devise restrictions under s 4(c), Art. X of the State Constitution if the following or substantially similar language is included in a deed: 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.

On a related note, there are new provisions for documentary stamps on interspousal transfers.

Section 201.02(7)(b), Florida Statutes, also effective July 1, exempts documentary stamps on a conveyance between spouses of homestead real property when there is no consideration in excess of the mortgage or other liens against the property if the Deed is recorded within 1 year after the date of marriage.

There will no longer be a requirement to charge documentary stamp taxes on half (½) of the outstanding mortgage debt.

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