Florida’s homestead laws are among the most protective in the country. They safeguard a person’s primary residence from forced sale, shield equity from certain creditors, and impose strict restrictions on how property can be transferred—even between spouses. When a couple decides to enter into a prenuptial agreement in Florida, understanding how these homestead protections interact with contractual rights becomes absolutely essential. A well-drafted prenup can govern the fate of many marital and nonmarital assets, but homestead property stands apart in key ways that even the most sophisticated agreements cannot fully override without precision and care.
This article breaks down what you can and can’t do with homestead property in a Florida prenuptial agreement. For couples marrying in Tampa, the guidance of an experienced Tampa prenup lawyer is critical to ensuring that their agreement is enforceable, valid, and compliant with Florida’s constitutional protections.
Understanding the Florida Homestead Concept
In Florida, the term “homestead” has both tax and constitutional meanings. For the purposes of prenups, it’s the constitutional homestead protections that matter most.
Under Article X, Section 4 of the Florida Constitution, homestead property is protected from forced sale and subject to transfer restrictions if the owner is married or has minor children. The protections include:
- Exemption from forced sale by creditors (with limited exceptions)
- Cap on property taxes via the Save Our Homes assessment
- Restrictions on alienation and devise (transfer through will or deed)
The primary goal is to protect the family residence, particularly for the benefit of surviving spouses and minor children. This protection, however, creates tension when parties try to contract around these rights in a prenuptial agreement.
What You Can Do in a Florida Prenup Regarding Homestead Property
Despite the strict limitations, there are several important things a Tampa prenup lawyer can help spouses accomplish regarding homestead property:
1. Waive Inheritance Rights to Homestead
Florida law allows a spouse to waive their rights to homestead property in a valid prenuptial agreement. This includes:
- The right to receive a life estate or elective share in the homestead upon the death of the titled spouse.
- Any interest the surviving spouse would otherwise have under intestate succession if the other dies without a will.
Florida Statute §732.702 permits these rights to be waived before or after marriage, so long as the waiver is in writing and signed with fair disclosure or voluntarily waived disclosure. This means a prenuptial agreement can serve as a powerful estate planning tool, especially when one spouse brings a premarital home into the marriage.
2. Designate Ownership of a Future or Current Homestead
A prenup can clarify who will own the homestead property during the marriage and in the event of divorce. For example:
- The agreement may specify that a premarital home will remain the separate, nonmarital property of the titled spouse.
- It can provide that a home purchased during the marriage using separate funds will be deemed nonmarital and returned to the contributing spouse if the marriage ends.
While the constitutional homestead protections apply primarily in the event of death, a Tampa prenup lawyer can draft provisions that clarify intent for divorce purposes and designate ownership boundaries in advance.
3. Control Disposition of Proceeds Upon Sale of a Homestead
Although a prenup cannot necessarily waive constitutional protections without formal spousal joinder, it can establish rules for what happens to homestead proceeds in the event of a voluntary sale. For example:
- A couple may agree that any increase in value of the homestead during marriage will be split in a certain way.
- They may pre-determine what portion of the sale proceeds are marital versus nonmarital.
These provisions can help avoid litigation later over equity division when one party claims passive appreciation or mortgage paydown during the marriage contributed to marital equity.
4. Plan for Future Waivers via Joinder
Even though a prenup cannot unilaterally waive certain rights (like the right of spousal joinder to transfer homestead property during life), it can establish that both spouses agree to execute necessary waivers or joinders at the appropriate time.
This type of language reflects mutual intent and sets up a roadmap for complying with constitutional formalities later. A Tampa prenup lawyer can include contingencies that require a spouse to cooperate in signing a joinder deed when the titled spouse wishes to sell or gift the homestead.
5. Protect Separate Property Used to Acquire Homestead
If one party uses separate, premarital funds to purchase a jointly titled homestead, a prenup can clearly outline how those contributions will be handled in a divorce.
Without this, commingling and titling can convert separate assets into marital property. With a clear agreement in place, the contributing spouse can preserve their investment and prevent disputes over reimbursement.
What You Cannot Do in a Florida Prenup Regarding Homestead Property
There are some things that simply cannot be waived or modified in a prenup when it comes to homestead, particularly while both spouses are alive and married.
1. Unilaterally Waive Spousal Joinder Requirements
Under the Florida Constitution, if a property qualifies as a homestead, it cannot be sold, mortgaged, or transferred without the consent (joinder) of both spouses, even if only one spouse is on title. A prenup cannot override this.
Even if your agreement says that only one spouse owns the homestead, the titled spouse must still obtain the other spouse’s written, notarized consent to transfer or encumber the property.
There is no “prenup exception” to this rule. Spousal joinder is a hard constitutional requirement that applies as long as the property is a homestead.
2. Waive Minor Children’s Inheritance Rights in the Homestead
If a Florida homeowner dies and leaves behind a surviving spouse and minor children, the homestead may not be devised at all—meaning it cannot be left to anyone via will. Instead, it passes as a life estate to the spouse, with a vested remainder to the minor children (or an undivided one-half interest to the spouse with the other half to the children, under updated law).
A prenup cannot waive the rights of minor children in this regard. These rights are constitutionally protected and designed to ensure housing stability for dependents.
3. Invalidate the Homestead Designation Itself via Prenup
Some couples try to agree in their prenup that a particular property won’t qualify as homestead for constitutional purposes. But courts do not honor private agreements that contradict constitutional law.
If a property meets the statutory requirements of homestead—primary residence, within Florida, owned by a natural person—then it will receive the protections, regardless of what a prenup says.
A Tampa prenup lawyer can help structure ownership or usage to avoid triggering homestead protections, but cannot contractually nullify the homestead designation if the criteria are met.
4. Circumvent Florida’s Devise Restrictions Through Prenup Alone
Even with a spousal waiver, a prenup alone is not enough to transfer homestead property upon death unless the decedent’s estate plan also complies with Florida’s constitutional devise restrictions.
For instance, if a will or trust attempts to give homestead property to someone other than the spouse when minor children are alive, it will be invalid—even if the prenup says otherwise.
The estate plan must align with the prenup and with the constitutional restrictions. A Tampa prenup lawyer often works closely with estate planners to ensure full alignment.
Why Florida Prenups Need Tailored Homestead Provisions
Because homestead law is so complex and rigid, generic prenup templates are often insufficient in Florida. Even sophisticated parties can inadvertently sign agreements that conflict with constitutional mandates.
To avoid disputes over real estate during divorce or probate, couples should address the following in their prenup:
- Clear identification of current and future homestead property
- Ownership and use rights during the marriage
- What happens in the event of divorce (e.g., exclusive use, sale, buyout terms)
- Waivers of inheritance rights
- Requirements for cooperation in joinder or quitclaim deeds
- Contribution reimbursement provisions for improvements, mortgage payments, or equity
An experienced Tampa prenup lawyer can ensure that these provisions comply with Florida law while still honoring each spouse’s intent.
How Prenups Interact With Joint Titling of Homestead Property
Many couples assume that adding a spouse to the title of a home doesn’t change much legally, but in Florida it can create unintended consequences—especially when homestead protections kick in.
If a home is titled jointly as tenants by the entirety (the default for married couples), it becomes fully marital property. This can override prenup terms unless the agreement explicitly addresses titling.
Prenups should clearly spell out what happens if a separate property home is retitled during the marriage:
- Does that act waive the separate property claim?
- Will the original owner be reimbursed?
- Does joint titling convert the home to marital property?
These questions must be answered in the document itself. A Tampa prenup lawyer can draft titling language that preserves intent and prevents future litigation.
What Happens If the Homestead Is Rented Out?
A home ceases to qualify as homestead property once it is no longer the permanent residence of the owner or their family. If the couple moves out and rents the home, the protections may be lost—temporarily or permanently.
A prenup can include language that designates whether a rented property retains its character as separate property and under what conditions homestead rights will be re-established.
This matters because:
- If homestead status is lost, the property may become subject to different creditors.
- If homestead status is regained, the spouse regains veto power over transfer or sale.
Understanding the fluid nature of homestead protections is critical when drafting prenups involving income-generating or transitional real estate.
Practical Example Scenarios
A well-drafted prenup can avoid serious problems later. Consider the following hypotheticals:
Example 1:
Spouse A owns a condo in Tampa before the marriage. In the prenup, they declare it will remain nonmarital. However, they later retitle it jointly. Without additional prenup language, Spouse A may lose their claim to the asset in a divorce.
Example 2:
Spouse B waives their inheritance rights to the marital home in a prenup. Upon Spouse A’s death, the home is left to adult children. If the couple had minor children, this devise would be invalid—regardless of the prenup—due to constitutional protections.
Example 3:
A couple agrees in their prenup that the spouse not on title will always cooperate in any future sales or refinancing. Years later, during a contested divorce, that spouse refuses to sign a joinder. The sale is blocked because a prenup cannot override constitutional requirements for consent.
FAQ
Can I waive my rights to my spouse’s homestead in a Florida prenup?
Yes, Florida law allows you to waive your spousal inheritance rights to homestead property in a valid prenuptial agreement.
Do both spouses need to sign a deed to sell a homestead in Florida?
Yes. Even if only one spouse owns the property, both must sign to sell or mortgage it if it qualifies as homestead.
Can we agree in our prenup that a home will not be considered a homestead?
No. If the property qualifies under Florida law as a homestead, private agreements cannot strip it of those protections.
Will a Florida court enforce a prenup that contradicts homestead rules?
Only partially. Any provisions that conflict with constitutional protections—such as waiving spousal joinder—will be struck down as unenforceable.
Does a prenup override the rights of minor children to inherit homestead?
No. Minor children’s rights are protected by the Florida Constitution and cannot be waived in a prenup.
Can a Florida prenup assign post-sale proceeds from a homestead?
Yes. A prenup can establish rules for how equity is split or reimbursed after the homestead is sold.
What if the homestead increases in value during the marriage?
A prenup can define how appreciation is treated—whether it’s marital or separate—but must do so clearly and in compliance with Florida law.
Can my spouse force me to sign a prenup giving up homestead rights?
No. Waivers must be voluntary, and fair financial disclosure is required unless explicitly waived in writing.
Should I include real estate attorneys in prenup planning?
Yes, especially if real property is involved. A Tampa prenup lawyer may coordinate with real estate counsel to ensure deeds and titles match the prenup terms.
Can homestead laws impact my estate plan despite a prenup?
Absolutely. Your will or trust must comply with homestead restrictions—even if your prenup waives rights—otherwise, the disposition may fail.
The McKinney Law Group: Clear, Customized Prenuptial Agreements for Tampa Couples
Every couple’s financial picture is different. We draft prenuptial agreements that reflect your goals and protect your future—so you can enter marriage with clarity and peace of mind.
Call 813-428-3400 or email [email protected] to schedule your consultation.