The Florida Constitution does not allow an individual to convey or encumber homestead property without the joinder of the spouse, even if the spouse is not in title. In fact, even if the non-titled spouse does not live in the property, they still have homestead rights so long as the title holder or any minor children reside in the property.
You have probably noticed that the term “homestead” gets bandied about frequently, and often with regard to the “Save Our Homes” property tax exemption. The concept to which I am referring here is a constitutional right that provides: (i) certain protections against forced sale; and (ii) restrictions on transfer, devise and encumbrances, separate and apart from the ad valorem tax exemption.
From the Realtor’s perspective, this situation tends to arise when a spouse is out of town at closing time, and it is inconvenient to pin the individual down for a signature, and the remaining spouse invokes the “it was mine before we got married and still is” approach. If you can determine that the parties actually reside elsewhere, then this may actually be a valid response. However, if the individually-owned property is what the parties consider their homestead, then inconvenience is of no consequence – the other spouse needs to join in the conveyance for it to be valid.
There are plenty of nuances to the concept of constitutional homestead, so I encourage you to seek the counsel of an experienced real estate attorney should you encounter any hiccups with recalcitrant spouses come listing or sale time.
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