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Homestead rights for married, but separated, couples

By ERIC FEICHTHALER - Real Estate Law | Aug 13, 2020

Dear Mr. Feichthaler:

I have been married for 28 years, but my husband and I are separated for a year now. The good news is we get along well for a separated couple, in fact we are staying married in part because I receive insurance benefits from my husband’s ex-employer, and will receive his pension if he passes away. This will occur so long as we stay married.

Problem is, I have heard that spouses have homestead rights in real estate, and we now each have our own home. How can we avoid problems with sales later?

— Marilyn N.

Dear Marilyn,

We encounter this issue frequently when we handle title work for split, but still married, couples. As part of the title clearing process, spouses need to sign off on deeds for homestead property. If the spouse isn’t cooperative, there can be significant time and cost in resolving the issue, and sometimes leads to the loss of the sale.

This is another situation where a little planning can be very helpful. The Florida Legislature adopted new legislation last year that allows owners like you to waive their homestead rights in property through a deed with specific language. The language of Section 732.7025 provides a safe harbor that, if included in a deed signed by your spouse today, would allow you to sell the property in the future with no issues. So, if you both sign and record the proper deeds to each other, the properties can later be sold by the owner only, and not need any consent from the spouse.

Homestead issues in Florida are complicated, so legal counsel is recommended prior to attempting to waive homestead. Not only do we want to ensure you can sell the property as you wish in the future, but we also need to take care that you do not waive your own homestead rights, which could jeopardize tax reductions and protection from creditor claims.

Eric P. Feichthaler has lived in Cape Coral for over 30 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through the Cape Coral Caring Center, Cape Coral Historical Museum, and Cape Coral Kiwanis. He has been married to his wife, Mary, for over 18 years, and they have four children together. He earned his board certification in Real Estate Law from the Florida Bar. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator.

Mr. Feichthaler can be reached at eric@capecoralattorney.com, or (239) 542-4733.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.