### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

WILLIAM THAYER and LOUISE A. JEFFERSON
, Appellant s ,

v.

GARY HAWTHORN
, Appellee

.

No. 4D 22

- 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 appellant s.

Brett C. Barner, Anya M. Van Veen, and Robb W. Armstrong of Barner & Barner, P.A., Palm Beach Gardens, for appellee.

O N A PPELLEE ’ S M OTION FOR R EHEARING , M OTION FOR R EHEARING E N B ANC , AND M OTION F OR C LARIFICATION

W ARNER , 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 righ ts 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 devisab le and passing to his heirs when he predeceased his wife. We reverse, concluding that the warranty deed ’ s language did not waiv e 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 t he deed

, Doris and James were the grantors, and they were also each grantees, as the trustees of their individual trusts.

The deed acknowledg ed that as trustees they had “ f ull 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:

T hat said grantor, for and in consideration of the sum of TEN ($10.00) DOLLARS, and other good and valuable consideration to said grant o r in hand paid by said grantee, the receipt whereof is hereby acknowledged, has granted, bargained and sold to the said grantee, a nd 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 ful ly disbursed

to a ppellee

— 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 a ppellee and no lineal descendants. Doris died in July 2018, survived by her children.

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

status of James’ half of the p roperty. 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 w arranty d eed, 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

p roperty ’ s homestead status. Appellants argued that James ’ attempted

devise of his share of the homestead pursuant to h is trust failed

, because Doris never waived her constitutionally prot ected homestead rights in the

p roperty. 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 p roperty

before it wa s incorporated into the municipality of Jupiter.

Answering appellants ’ counter

- petition

, a ppellee raised the affirmative defense of waiver, arguing that Doris had waived her homestead rights in

the p roperty by executing the 2002 w arranty d eed conveying h alf the

p roperty 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

- ha lf 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 tw o 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 w arranty d eed 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

s ection 732.702(1) to waive Doris’ rights.

The competing motions were brought to a hearing. At the hearing, appellants argue d additionally that the warranty deed tracked the language of s ection 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. A ppellee 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, a ppellee argued the warranty deed demonstrated both spouses ’ intent to waive the ir homestead rights.4 After the hearing, the trial court issued an order granting final summary judgment in favor of a ppellee. 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

p roperty. Alternatively, the court found that based upon the affidavits from the estate planning attorney, there was no dispute that Doris

intended to waive her homestea d 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 tria l 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

tha t 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 w arranty

d eed waive d Doris ’ and James ’ homestead rights in each other ’ s on e

- half interest in the property. We c onclude 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, exc ept 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 be fore 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 state d 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)

. With out 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 sufficient ly 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; anythi ng 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. Moreov er, the deed released the spouse ’ s rights in the
property. The warranty deed here contains n o 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 c onstitute a written waiver of homestead rights as required by s ection 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 “ S afe Harbor ” Statute

, 93 Fla

. B

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

s ection 732.7025 , Florida Statutes (2018)

, providing that a deed containing certain language would constitute a waiver of the homeste ad 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 join ing 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 prope rty, family allowance, or preference as personal representative.” Id. at 1022 (emphasis added). Here, James ’ and Doris’ warranty deed does not contain language clearly evinc ing 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 sta tute 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 conveya nces 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 acre s , the court decided that James’ interest was reduced to the home

and 0.25 acre s

. However, appellants alleged in their pleadings and in their motion for summary judgment, and appellee alleged i n 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 exemp t 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 shal l 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

invo lving 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 a n 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 summary8 judgment in favor of appellee and remand for further proceedings in accordance with this opini on.

Reversed and remanded with instructions.

G ERBER and L EVINE , JJ., concur.

* * *

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