DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

WILLIAM THAYER and LOUISE A. JEFFERSON,

Appellants,

v.

GARY HAWTHORN,

Appellee.

No. 4D22-244

[June 21, 2023]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Sarah Willis, Judge; L.T. Case No. 50-2017-CP-003545-

XXXX-NB.

Peter A. Sachs, Kelly G. Nugent, and Alexander L. Brams of Jones 

Foster P.A., West Palm Beach, for appellants.

Brett C. Barner, Anya M. Van Veen, and Robb W. Armstrong of Barner 

& Barner, P.A., Palm Beach Gardens, for appellee.

ON APPELLEE’S MOTION FOR REHEARING,

MOTION FOR REHEARING EN BANC, AND MOTION FOR CLARIFICATION

WARNER, J.

We grant appellee’s motion for rehearing, deny appellee’s motion for 

rehearing en banc and motion for clarification, vacate our prior opinion, 

and substitute the following in its place.

In this case, we consider whether a spouse waived her homestead rights 

to her home, when she executed a warranty deed conveying the property 

to herself and her husband as tenants in common. The trial court found 

that she had waived her homestead rights to her husband’s one-half 

interest, making his interest freely devisable and passing to his heirs when 

he predeceased his wife. We reverse, concluding that the warranty deed’s 

language did not waive the spouse’s homestead rights as required by 

section 732.702, Florida Statutes (2002).
2

Doris and James Hawthorn were married in July of 1978, until James’

presumed death in July of 2014. Doris and James had no children 

together, but Doris had five children from a previous relationship, 

including appellants. Doris’ surviving children are all adults.

Doris originally owned the property herself in fee simple. In 1987, she 

quitclaimed the property to herself and James as joint tenants with rights 

of survivorship.

In 2002, as part of estate planning, Doris and James executed a 

warranty deed conveying one half of the property to each of their revocable 

trusts. According to the deed, Doris and James were the grantors, and 

they were also each grantees, as the trustees of their individual trusts. 

The deed acknowledged that as trustees they had “full power and authority 

to protect, conserve, sell, lease, encumber or otherwise to manage and 

dispose of the real property described herein, with each trustee having an 

undivided one-half Interest as tenant in common.” The operative words of 

conveyance were as follows:

That said grantor, for and in consideration of the sum of TEN 

($10.00) DOLLARS, and other good and valuable 

consideration to said grantor in hand paid by said grantee, 

the receipt whereof is hereby acknowledged, has granted, 

bargained and sold to the said grantee, and grantee’s heirs 

and assigns forever . . . .

Their trusts provided that each trust would be for the surviving

spouse’s benefit. After the surviving spouse’s death, Doris’ trust was to be 

disbursed to her children. James’ trust initially was to be fully disbursed

to appellee—James’ brother—but was amended in 2009, with Doris’

knowledge, to leave seventy percent to appellee and thirty percent to Doris’

children.

James disappeared in 2014 and was never found. He was declared 

presumptively dead in 2017. James was survived by appellee and no lineal 

descendants. Doris died in July 2018, survived by her children.

After Doris’ death, appellee filed a petition to determine the homestead 

status of James’ half of the property. Appellee’s petition asserted that 

James was free to devise his one-half interest because Doris waived her 

homestead rights to his half via the warranty deed, and the house and 

0.25 acres of the Property were exempt homestead property.
3

Appellants filed an answer and a counter-petition to determine the 

property’s homestead status. Appellants argued that James’ attempted 

devise of his share of the homestead pursuant to his trust failed, because 

Doris never waived her constitutionally protected homestead rights in the 

property. At James’ death, the property could only be devised to Doris. 

Appellants also argued that Doris’ exempt portion constituted the home 

and the entire contiguous 0.695 acres because she owned the property 

before it was incorporated into the municipality of Jupiter.

Answering appellants’ counter-petition, appellee raised the affirmative 

defense of waiver, arguing that Doris had waived her homestead rights in 

the property by executing the 2002 warranty deed conveying half the 

property into Doris’ and James’ respective trusts.

The parties filed competing motions for summary judgment. Appellee 

argued that Doris and James had waived their respective homestead rights 

in the other spouse’s one-half interest by executing the warranty deed. 

Appellee argued that section 732.702, Florida Statutes (2002), provided 

that a surviving spouse may waive his or her right to homestead property 

wholly or partially by written contract signed in the presence of two 

subscribing witnesses before or after entering a marriage, and that a 

waiver of “all rights” or equivalent language is a waiver of homestead 

rights. Appellee also relied on an affidavit and deposition of Doris’ and 

James’ estate planning attorney who testified that they had intended to 

waive their homestead interests.

Appellants argued that Doris never waived her homestead rights in 

James’ one-half interest. The warranty deed did not contain operative 

language, such as conveying “all rights,” to waive Doris’ homestead rights, 

and there was no other documentary evidence in the form required under 

section 732.702(1) to waive Doris’ rights.

The competing motions were brought to a hearing. At the hearing,

appellants argued additionally that the warranty deed tracked the 

language of section 689.02(1), Florida Statutes (2002). They contended 

that if that language was sufficient to waive homestead rights, then every 

warranty deed would act as a waiver of homestead rights. Appellee 

responded that the precatory language was not in the statute, i.e., that the 

trustees had “full power and authority to protect, conserve, sell, lease, 

encumber or otherwise to manage and dispose of the real property 

described herein.” Regardless, appellee argued the warranty deed 

demonstrated both spouses’ intent to waive their homestead rights.
4

After the hearing, the trial court issued an order granting final 

summary judgment in favor of appellee. The trial court found that 

pursuant to section 732.702 and this Court’s holding in Stone v. Stone, 

157 So. 3d 295 (Fla. 4th DCA 2014), Doris and James had waived their 

own homestead rights in the other spouse’s one-half interest in the 

property. Alternatively, the court found that based upon the affidavits 

from the estate planning attorney, there was no dispute that Doris 

intended to waive her homestead rights in the half of the property 

transferred to James’ trust. The court also determined that James’ portion 

of the homestead was 0.25 acres. After the court denied a motion for 

rehearing, appellants filed this appeal.

Appellate courts review a trial court’s entry of summary judgment de 

novo. United Auto. Ins. Co. v. Lauderhill Med. Ctr. LLC, 350 So. 3d 754, 

756 (Fla. 4th DCA 2022). Summary judgment is appropriate where the 

movant shows there are no genuine disputes as to any material facts and 

that the movant is entitled to judgment as a matter of law. Fla. R. Civ. P. 

1.510(a).

The question presented in this appeal is whether the 2002 warranty 

deed waived Doris’ and James’ homestead rights in each other’s one-half 

interest in the property. We conclude that the language of the deed was 

insufficient to waive homestead.

The Florida Constitution provides that a homestead is generally not 

devisable:

The homestead shall not be subject to devise if the owner is 

survived by spouse or minor child, except the homestead may 

be devised to the owner’s spouse if there be no minor child.

The owner of homestead real estate, joined by the spouse if 

married, may alienate the homestead by mortgage, sale or gift 

and, if married, may by deed transfer the title to an estate by 

the entirety with the spouse. If the owner or spouse is 

incompetent, the method of alienation or encumbrance shall 

be as provided by law.

Art. X, § 4(c), Fla. Const.

However, Florida law allows spouses to waive all types of spousal rights, 

including rights to the homestead. Section 732.702 provides:
5

The rights of a surviving spouse to . . . homestead . . . , 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. . . . 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 . . . , is a waiver of all rights to . . . 

homestead . . . , 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.

§ 732.702(1), Fla. Stat. (2002).

The trial court relied on Stone to conclude that the warranty deed was 

sufficient to waive homestead rights. Stone, however, is distinguishable.

In Stone, as in this case, spouses had transferred their homestead to 

themselves as tenants in common and subsequently transferred their 

interests into their own trusts. 157 So. 3d at 297. The deed’s language

splitting the property into tenancy in common interests stated that the 

spouse “grants, bargains, sells, aliens, remises, releases, conveys, and 

confirms” the property “together with all the tenements, hereditaments, 

and appurtenances thereto belonging or in anywise appertaining.” Id. at 

304 (emphasis added). Without citation, this court concluded that this 

language was sufficient to waive homestead rights under the statute. Id.

While one may question whether the language in Stone was sufficiently 

specific to waive homestead, it is still more specific than the deed’s 

language in this case. The Stone deed released the property and also 

conveyed the property “together with all . . . hereditaments.” Id. A 

hereditament is “[a]ny property that can be inherited; anything that passes 

by intestacy.” Hereditament, Black’s Law Dictionary (11th ed. 2019). The 

language thus conveyed the spouse’s inheritance interest in the property, 

and this would include her constitutional right to the inheritance of the 

homestead. Moreover, the deed released the spouse’s rights in the 

property. The warranty deed here contains no language of release or of 

conveyance of a hereditament. The grantor simply “granted, bargained 

and sold” the property to the grantee. This is insufficient to constitute a 

written waiver of homestead rights as required by section 732.702(1).
6

Stone generated concern as to what language in a deed would constitute 

a waiver of homestead rights. See Jeffrey S. Goethe & Jeffrey A. Baskies,

Homestead Planning Under Florida’s New “Safe Harbor” Statute, 93 Fla. B. 

J. 36 (May/June 2019). To provide guidance, the Legislature enacted 

section 732.7025, Florida Statutes (2018), providing that a deed 

containing certain language would constitute a waiver of the homestead 

rights:

(1) 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.”

While this statutory provision does not apply in this case, it is illustrative 

of the point that language waiving a constitutional right must be able to 

be clearly understood as waiving the right. Similarly, in Merli v. Merli, 332 

So. 3d 1020 (Fla. 4th DCA 2022), in discussing the waiver of rights in a 

marital settlement agreement, we stated, “[p]ursuant to the plain language 

of section 732.702 and the partial marital settlement agreement, neither 

the decedent nor the wife explicitly waived their right to an elective share, 

intestate share, pretermitted share, homestead, exempt property, family 

allowance, or preference as personal representative.” Id. at 1022 

(emphasis added). Here, James’ and Doris’ warranty deed does not 

contain language clearly evincing a waiver of the homestead right.

Because the statute requires that a spouse execute a written waiver in 

front of subscribing witnesses, and we have concluded that the deed is not 

a waiver, external evidence such as the estate planning attorney’s 

testimony cannot correct the deed. The statute requires the waiver to be 

in writing. Allowing parol evidence to supplement the writing not only 

would violate the statute, but it would also wreak havoc on land transfers. 

If one could go behind a deed to determine whether homestead protection 

had been waived, title examiners could not rely on the recorded deeds to 

determine whether or not interests remained in property. That, of course, 

is why the Legislature provided definitive waiver language for inclusion in 

deeds as a “safe harbor” for conveyances of homestead.
7

We also reverse the trial court’s conclusion that James’ homestead 

interest in the property was the home and 0.25 acres. The court found 

that the 1.39 acre property was located within a municipality and because 

Article X, section 4(1) limits the size of the homestead in a municipality to

0.5 acres, the court decided that James’ interest was reduced to the home 

and 0.25 acres. However, appellants alleged in their pleadings and in their 

motion for summary judgment, and appellee alleged in his motion for 

summary judgment, that Doris owned the property prior to it being 

annexed into a municipality. Therefore, the nonmunicipal 160-acre limit 

to the homestead exemption may apply, which would mean that all 1.39 

acres of the property was exempt homestead. See Art. X, § 4(a)(1), Fla. 

Const. (providing that if the homestead is “located outside a municipality,”

the exemption applies “to the extent of one hundred sixty acres of 

contiguous land and improvements thereon, which shall not be reduced 

without the owner’s consent by reason of subsequent inclusion in a 

municipality[] . . .”) (emphasis added).

In his motion for summary judgment, appellee contested the 

application of the nonmunicipal exemption because both conveyances 

involving James—Doris’ conveyance to herself and James as joint tenants, 

and then both of their conveyances to their respective trusts—occurred 

after the property’s annexation into Jupiter, so James only had an 

ownership and homestead interest in the property while it was 

incorporated in a municipality and therefore could only have claimed up 

to half an acre as his exempt homestead. Thus, a disputed issue of 

material fact and law remains as to whether the municipal or 

nonmunicipal limit to the homestead exemption applies, precluding 

summary judgment on the issue of what portion of the property is subject 

to the homestead exemption from devise. If the nonmunicipal limit 

applies, then the exempt homestead is all 1.39 acres, and James could not 

devise any of it. If the municipal limit applies, then the exempt homestead 

is 0.5 acres, and the court must determine what remaining portion of the 

total property was devisable by James.

Conclusion

The Florida Constitution protects the homestead upon the death of an 

owner by precluding its devise when there is a spouse. Homestead rights 

may be waived in accordance with the statutory provisions of section 

732.702(1), Florida Statutes (2002). In this case, we conclude the 

warranty deed did not waive homestead, because it lacked language 

specifically releasing inheritance rights. We reverse the final summary 
8

judgment in favor of appellee and remand for further proceedings in 

accordance with this opinion.

Reversed and remanded with instructions.

GERBER and LEVINE, JJ., concur.

* * *

Final Upon Release; No Motion for Rehearing Will Be Entertained.