In Florida, just because you were the sole purchaser or are the sole person on title, does not mean your spouse has no rights to the property, if it is your primary residence (i.e. your homestead). Florida’s homestead laws extend beyond a tax exemption and can be used as asset protection for your primary residence. Florida offers a person’s primary residence (their homestead) protection against a forced sale by a creditor to satisfy a judgment, unless the creditor has a security or voluntary lien interest against the property (through a mortgage or a construction lien, for example), so to ensure property isn’t sold or encumbered without the necessary consent, often, even a spouse that is not on title may need to sign some documents.
Unlike with the tax exemption, there is no paperwork that needs to be filed to qualify, and no waiting period or deadlines for filing. This protection is established as soon as the owner of the property buys the property, if they intend for it to be their primary residence. For more details on the Florida Homestead Tax Exemption please see our video on the topic here: https://berlinpatten.com/economic-benefit-homestead-exemption-florida/
When a married person wishes to purchase a piece of property to serve as their primary residence with a mortgage, both spouses must sign the mortgage. This is true even if only one of them is the purchaser, because one spouse cannot convey an interest in homestead property (the lien on the property) without the consent of the other. This means that even if one spouse is getting the loan, and paying for, and assuming all responsibility for the loan and the purchase, the lender must still get consent of the other spouse through their signature on the mortgage to enable them to lien the property. Similarly, if a married person is selling property that they own solely in their name, their spouse will have to join in on the conveyance, if it is their primary residence. While this is generally not burdensome, and spouses are cooperative, issues can arise if one spouse is unavailable, or if the parties are going through a divorce that has not been finalized. It is important to know this ahead of time so both your closing agent, and lender can prepare documents accordingly and there are no surprises at or after closing.
Failure to get spousal joinder on a deed conveying homestead property could leave Buyers open to claims from the non-signing spouse who will continue to have homestead rights on the property. This could not only be expensive, but could also put a cloud on buyer’s title preventing them from being able to sell or fully enjoy their new purchase until the issues are resolved.
As you can see just because an individual is the only person on title does not mean the home is solely theirs to do with as they please, so while it may seem archaic to ask a person for their marital status when putting together a contract or preparing for a closing, having this information is imperative to ensuring all the necessary documentation is prepared correctly and there are no delays to closing. As always, we urge you to reach out your local real estate attorney should you have any questions!
Berlin Patten Ebling, PLLC
Article Authored by Natasha Selvaraj, Esq. firstname.lastname@example.org
This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.
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