Florida/Georgia Personal Injury & Workers Compensation

...1970), requires us to find that section 733.702 is a jurisdictional statute of nonclaim. The issue in Twomey was whether a creditor was entitled to collect on a claim that was never filed in the probate court pursuant to section 733.16, Florida Statutes (1965) (the predecessor to section 732.702)....

...nce. See Weisfeld-Ladd, 920 So.2d at 1150. In reviewing the trial court's order, we first determine whether the parties' agreement unambiguously settles Appellee's claims to the rights generally afforded to surviving spouses. Our review is guided by section 732.702(1), Florida Statutes (1995), which provides as follows: The right of election of a surviving spouse, the rights of the surviving spouse as intestate successor or as a pretermitted spouse, and the rights of the surviving spouse to home...

...d share, homestead property, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to either from the other by intestate succession.. . . Application of section 732.702(1) leads us to conclude that the trial court erred in determining that the prenuptial agreement was ambiguous as to Appellee's rights in the decedent's estate. Section 732.702(1) does not require that the parties specify an intent to relinquish rights given to surviving spouses in order to effectively relinquish those rights....

...operty would "forever remain [his] personal estate" and that such property would be "forever free of any claim by [Appellee]." Because this language is equivalent to a statement that Appellee waived "all rights" in the decedent's property or estate, section 732.702(1) compels a conclusion that the prenuptial agreement was a valid waiver of those rights....

...When read as a whole, the agreement makes clear the parties' intention that their marriage would not affect their financial interests. Paragraph two particularly supports this conclusion, even though it would not have been sufficient, standing alone, to constitute a waiver of the rights enumerated in section 732.702(1)....

...Because the prenuptial agreement is unambiguous, the trial court should not have taken parol evidence to decipher its meaning. Instead, it should have allowed the document to speak for itself. The prenuptial agreement was a valid waiver of the rights enumerated in section 732.702(1), and the trial court's conclusion to the contrary was erroneous....

...The term `approximate' is, for this purpose, held synonymous with `near', `close to' or `approaching'." Del Vecchio v. Del Vecchio, 143 So.2d 17, 20 (Fla. 1962). [3] The standards established in Del Vecchio as they apply to antenuptial agreements have been supplanted by § 732.702, Fla....

...The Antenuptial Agreement We have no difficulty in deciding that the language of the antenuptial agreement was sufficient to waive Marcella's rights to take under the provisions of Sheldon Hulsh's will. [1] Section 731.005(1), Florida Statutes (1975) (currently § 732.702(1), Fla....

...For example, article X, section 4(c) prohibits a devise of the homestead "if the owner is survived by spouse or minor child." In City National Bank of Florida v. Tescher, 578 So.2d 701, 703 (Fla.1991), we found valid a spouse's waiver of that restriction. See also § 732.702(1), Fla....

...ction of article X, section 4(c). Although the decedent's husband was physically alive at the time of her death, he had waived all rights to homestead through the antenuptial agreement which he executed. Such a waiver is valid under Florida law. See section 732.702(1), Florida Statutes (1975); Hulsh v....

...Solis, 570 So.2d 996 (Fla. 3d DCA 1990), review denied, 581 So.2d 163 (Fla. 1991); Belle Island Inv. Co., Ltd. v. Feingold, 453 So.2d 1143 (Fla. 3d DCA), cause dismissed, 459 So.2d 1039 (Fla. 1984); Restatement (Second), Conflict of Laws, § 98 (1988). See also § 732.702, Fla....

...Del Vecchio, 143 So.2d 17 (Fla. 1962), and its progeny establish the standards of disclosure required and knowledge needed before an ante-nuptial agreement will be held valid. Although the standards established in Del Vecchio have been supplanted by statute, Section 732.702, Florida Statutes (1975), because of the date of Dr....

...ccordance with the requirements of section 732.801, Florida Statutes (1985). Mrs. Cleeves also could have waived her right to the homestead property by entering into a written contract to that effect with the decedent before or after their marriage. § 732.702, Fla. Stat. (1985). The petition Mrs. Cleeves filed as copersonal representative, however, is not a contract as provided for by section 732.702....

...Once appellant's promise acquired such legal significance it was akin to those *867 written, informed homestead waivers which have been approved by the courts. See Davis v. Amerifirst Bank, 578 So.2d 318, 319 (Fla. 3d DCA 1991), rev. den. 584 So.2d 997 (Fla.1991); City Nat'l Bank v. Tescher, 578 So.2d at 703; § 732.702(1), Fla.Stat....

...Rehearing Denied October 15, 1980. Thomas M. Brady of Wells, Brown & Brady, Pensacola, for appellant. Harry Lewis Michaels, Tallahassee, for appellee. ALDERMAN, Justice. Willa Mae Roberts appeals from a circuit court summary final judgment upholding the constitutionality of section 732.702(2), Florida Statutes (1979), [1] and the validity of an antenuptial agreement. She claims that section 732.702(2) is unconstitutional because it denies access to the courts, due process, and equal protection of the law, in violation of the Florida and federal constitutions....

...The personal representative objected to these petitions, claiming that Mrs. Roberts had waived all of her rights as a widow in an antenuptial agreement. [2] Mrs. *217 Roberts attacked the agreement's validity, alleging that Mr. Roberts did not make a fair disclosure of his wealth and claiming that section 732.702(2), the statute permitting an antenuptial agreement to be valid without full disclosure, is unconstitutional. Relying upon Kluger v. White, 281 So.2d 1 (Fla. 1973), Mrs. Roberts argues that section 732.702(2) denies her access to the courts because it abolishes a common law right of action that had existed prior to the adoption of article I, section 21 of the 1968 Florida Constitution....

...air and reasonable provision for the wife, or, alternatively, the wife must receive a full, fair, and open disclosure of the husband's wealth before she signs the agreement. The rule announced in Del Vecchio was legislatively changed by that part of section 732.702(2) which provides: "No disclosure shall be required for an agreement, contract or waiver executed before marriage." Mrs....

...The right to have an antenuptial agreement set aside still exists. For example, if a wife were able to show that her signature on such an agreement had been coerced or otherwise improperly obtained or that she was incompetent at the time she signed, section 732.702(2) would not bar her challenge to the validity of the agreement. We hold that section 732.702(2) does not deny access to the courts in violation of article I, section 21 of the Florida Constitution. We also reject Mrs. Roberts' argument that the statute violates due process and equal protection provisions of our state and federal constitutions. We find a rational relationship between the classification in section 732.702(2) and the permissible statutory objective of regulating descent of property....

..., arbitrary, or oppressive. The tests to withstand due process and equal protection challenges have been met. We also conclude that there are no disputed issues of material fact which preclude the entry of summary judgment. Accordingly, we hold that section 732.702(2) is constitutional and affirm the lower court. It is so ordered. ENGLAND, C.J., and ADKINS, BOYD, OVERTON, SUNDBERG and McDONALD, JJ., concur. NOTES [1] Section 732.702(2) provides: Each spouse shall make a fair disclosure to the other of his or her estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage. [2] Section 732.702(1) provides in pertinent part: Unless it provides to the contrary, a waiver of "all rights," or equivalent language, in the property or estate of a ......

...Second, Florida courts have held that the homestead exemption can be abandoned or alienated in a manner provided by law. See, e.g., Nelson v. Hainlin, 89 Fla. 356, 104 So. 589, 591 (1925); Hartwell v. Blasingame, 564 So.2d 543, 545 (Fla. 2d DCA 1990) (holding that pursuant to section 732.702(1), Florida Statutes, a surviving spouse can waive homestead in a written prenuptial agreement); Haddock v....

...1962), the court held that if such an agreement is not fair and reasonable then the issue turns on whether the other spouse (in that case the husband) had made a "full and frank disclosure" of his property. In the early 1970s, the legislature adopted what is now codified as section 732.702(2), Florida Statutes (1991), which provides: Each spouse shall make a fair disclosure to the other of his or her estate if the agreement * * * is executed after marriage. No disclosure shall be required for an agreement * * * executed before marriage. [e.s.] In Estate of Roberts v. Roberts, 388 So.2d 216 (Fla. 1980), the court held: The rule announced in Del Vecchio was legislatively changed by that part of section 732.702(2) which provides: "No disclosure shall be required for an agreement, contract or waiver executed before marriage." [2] [e.o.] In rejecting the wife's contention that the statute had the effect of denying her access to the courts, the...

...The right to have an antenuptial agreement set aside still exists. For example, if a wife were able to show that her signature on such an agreement had been coerced or otherwise improperly obtained or that she was incompetent at the time she signed, section 732.702(2) would not bar her challenge to the validity of the agreement....

...I take the opportunity, however, to recast the ending of my special opinion concurring in the court's decision on the merits. The original final paragraph of my opinion should be deleted and the following substituted in its place. Nevertheless, in Weintraub v. Weintraub, 417 So.2d 629 (Fla. 1982), the court held that section 732.702(2) does not apply outside probate and overruled Del Vecchio....

...nforce it against her. She alleges in essence that the provisions made for her by the agreement are not fair. [2] Concededly, both Roberts and Del Vecchio involved a claim by surviving spouses that those prenuptial agreements were unenforceable, and section 732.702 is contained in that part of the Florida Statutes dealing with decedent's estates and intestate succession. That may be true, but two reasons suggest that the statutory and decisional rule is also applicable to dissolution of marriage proceedings: (1) the actual text of section 732.702(2) is broad enough to apply literally to such proceedings; and (2) there is no good reason to believe that the legislature really intended to have a different rule apply to prenuptial agreements in divorce cases than applies in probate cases....

...Upon the husband's death, the wife filed her Election to Take Elective Share. The husband's children filed an objection, stating that the wife had "waived all of her rights to any of the decedent's separate property" and that "[p]ursuant to Florida Statutes 732.702, said Prenuptial Agreement operates as a waiver of Pauline S....

...ed the wife's Petition. This appeal followed. The wife contends that the trial court erred by finding that the Prenuptial Agreement operates as a waiver of her right to an elective share in her husband's property. We disagree. The parties agree that section 732.702(1), Florida Statutes (2002), allows an individual, prior to marriage to waive in writing his/her right to an elective share. Section 732.702(1), Florida Statutes (2002), provides, in part, as follows: rights of a surviving spouse to an elective share ......

...n their deaths. The husband's children, however, contend that Paragraphs 4 and 5 of the Prenuptial Agreement, although not specifically referring to "elective shares" or "all rights," was sufficient to waive the wife's right to an elective share, as section 732.702(1) provides that "equivalent language" may be used to waive a spouse's right to an elective share....

...e will of the other. The agreement was incorporated into the final judgment entered on May 30, 1984. In 1985, the parties remarried and remained married until the wife's death in 1987. The probate court ruled that the husband waived all rights under section 732.702, and denied the husband's petition to take an elective share as a pretermitted spouse....

...On appeal, the personal representative argues that a full disclosure of the extent of the husband's estate had not been made prior to the wife signing the agreement. In addition to the fact that this was not the basis for the court's decision, we note that section 732.702(2), Florida Statutes (1983), legislatively changed the disclosure rule announced in Del Vecchio v....

...While that argument might be asserted in a proper case, [3] such is not the case here. Clearly, the antenuptial agreement is sufficient to release any claim which appellant might have exerted against the estate of appellee upon his death had they remained married. Section 732.702, Florida Statutes (1979), provides that the rights of a surviving spouse may be waived by a "written contract, agreement, or waiver signed by the waiving party" and that no disclosure shall be required for an agreement, contract, or waiver executed before marriage....

...trial. AFFIRMED. FRANK D. UPCHURCH, Jr., SHARP and COWART, JJ., concur. NOTES [1] In In Re Estate of Reed, 354 So.2d 864 (Fla. 1978), the supreme court pointed out that the standards established in Del Vecchio and its progeny have been supplanted by section 732.702, Florida Statutes (1975)....

...[4] Antenuptial agreements probably should not be governed by the same principals as post-nuptial agreements despite Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla. 1962), and its progeny. The Legislature apparently agrees, at least, regarding rights of inheritance. See § 732.702(2), Fla....

...Jurmu devised by will to Harold Smith, Ms. Hartwell's former husband. We affirm the order, because Mr. Jurmu's surviving spouse, Ivadelle Purdue Jurmu, validly waived her constitutional homestead rights to this house in a prenuptial agreement pursuant to section 732.702, Florida Statutes (1979)....

...Article X, section 4, of the Florida Constitution, states: Section 4. Homestead, exemptions. c. The homestead shall not be subjected to devise if the owner is survived by a spouse or minor child, except that the homestead may be devised to the owner's spouse, if there be no minor child. Section 732.702(1), Florida Statutes (1979), states: Waiver of right to elect and of other rights....

...ibit Ivadelle Jurmu from validly waiving her homestead rights at the inception of the marital relationship which invoked those rights. Having determined that a spouse may validly waive his or her homestead rights through a prenuptial agreement under section 732.702, the next issue is whether that waiver is binding on lineal descendants or other statutory heirs....

...Huntley Johnson of Cushman & Johnson, Gainesville, for respondent. BOYD, Justice. This cause is before the Court on petition for review of a decision of the district court of appeal, which the court certified to have passed upon the following question of great public importance: Does Section 732.702(2) validate premarital agreements otherwise invalid under Del Vecchio v....

...The trial court ruled that the agreement was invalid because petitioner did not disclose the extent of his resources before its execution, nor did respondent have knowledge of his resources through other means. On appeal, the district court upheld the trial court ruling, finding that section 732.702, Florida Statutes (1979), which abolished the disclosure requirement in probate proceedings is not applicable to the dissolution process....

...Thus, as of 1970, antenuptial agreements could be upheld in both probate and dissolution proceedings only when they either met the fairness standard or were entered into knowingly. The rule as to probate was changed in 1974 when the legislature enacted what is now section 732.702(2), Florida Statutes (1979)....

...losure or knowledge of the other's assets, the discrepancy in the rules could promote divorce. That is, if the marriage is maintained until the death of the wealthier spouse, the antenuptial agreement will be valid in the absence of disclosure under section 732.702(2), and the spouse may possibly receive little or nothing from the estate....

...t be overruled. For the above reasons, we answer the certified question in the negative and approve the decision of the district court of appeal. It is so ordered. OVERTON, ALDERMAN and McDONALD, JJ., concur. ADKINS, Acting C.J., dissents. NOTES [1] Section 732.702 provides: (1) The right of election of a surviving spouse, the rights of the surviving spouse as intestate successor or as a pretermitted spouse, and the rights of the surviving spouse to homestead, exempt property, and family allowan...

...No disclosure shall be required for an agreement, contract, or waiver executed before marriage. (3) No consideration other than the execution of the agreement, contract, or waiver shall be necessary to its validity, whether executed before or after marriage. [2] Section 732.702 is found in Part VII of the Florida Probate Code, entitled "Contractual Arrangements Relating to Death."

...Because section 732.401, above set out, defines how homestead property descends, the appellants have an interest to have the property pass as homestead. They are the first lineal descendants and receive the fee interest in the property after the widow's life estate. Section 732.702(1), Florida Statutes [1] permits a surviving spouse to waive her homestead *636 rights, if done in writing, either before or after marriage....

...Appellant argues that if any of the points listed in her request for leave to amend *1018 might constitute valid avoidance of the agreement, the trial court abused its discretion in refusing leave to amend. Appellant's arguments center around Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla. 1962) and the effect on that case of Section 732.702, Florida Statutes....

...band's worth, or absent disclosure, a general knowledge by her of the husband's property. This rule was extended to the dissolution context in Posner v. Posner, 233 So.2d 381 (Fla. 1970). Subsequent to these decisions, however, the legislature added Section 732.702(2) pertaining to antenuptial agreements and a surviving spouse's rights: Each spouse shall make a fair disclosure of the other of his or her estate if the agreement, contract, or waiver is executed after marriage....

...]he right to have an antenuptial agreement set aside still exists. For example, if a wife were able to show that her signature on such an agreement had been coerced or otherwise improperly obtained or that she was incompetent at the time she signed, section 732.702(2) would not bar her challenge to the validity of the agreement." Appellant has not suggested similar attacks on the validity of the instant agreement, however, her challenges are all variations on the disclosure theme....

...The facts involved in the instant case are closely analogous, in our view, to those involved in Gillen. See also Gustafson, 515 So.2d at 1300. Under Florida law the agreement is valid, regardless of the nature or extent of the premarital disclosure of assets. See § 732.702(2), Fla....

...violation of the devise restrictions. We agree. Alma waived her homestead rights by executing the March 27, 2000 warranty deed splitting the property into two one-half tenancy in common interests and then transferring her interest into her QPRT. Section 732.702, Florida Statutes, provides in part, that “[t]he 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.” § 732.702(1), Fla....

...Her husband filed for an elective share, but the estate resisted the claim. Upon motion, the trial court entered Summary Final Judgment finding: 1. That all rights of husband Carlos Garcia, except that of elective share were waived by the Ante-Nuptial Agreement by virtue of F.S. 732.702; 2....

...That furthermore, although the language of the agreement is extremely strong to the effect that the wife's property shall be entirely and forever hers under all circumstances, it would be inequitable to deprive Mr. Garcia of rights by virtue of a statute enacted after the execution of the agreement (F.S. 732.702) while at the same time deprive him of the benefits of a statute likewise enacted after such execution (F.S....

...denied, 311 So.2d 114 (Fla. 1975); In re Roger's Estate, 171 So.2d 428 (Fla.2d DCA 1965). Encarnacion Luaces de Garcia died on February 21, 1979; thus the law in effect at the time of her death, the 1976 Florida Probate Code, governs this proceeding. Section 732.702 provides that a right of election may be waived: (1) The right of election of a surviving spouse, the rights of the surviving spouse as intestate successor or as a pretermitted spouse, and the rights of the surviving spouse to homeste...

...No disclosure shall be required for an agreement, contract, or waiver executed before marriage. (3) No consideration other than the execution of the agreement, contract, or waiver shall be necessary to its validity, whether executed before or after marriage. § 732.702, Fla....

...It is obvious that at the time the husband relinquished his rights he could not predict the condition or size his wife's estate would attain twenty years later. He was, in effect, surrendering rights to unknown or undetermined assets, not only because the future is unforeseeable, but also because under section 732.702, Florida Statutes (1977), disclosure in antenuptial agreements is unnecessary....

...We therefore hold that Carlos Garcia relinquished his right to an elective share of his wife's estate, a right created by the legislature subsequent to the execution of the antenuptial agreement in which he waived claims to her assets. The waiver provisions of the statute in effect at the *490 time of her death, section 732.702, Florida Statutes (1977), apply....

...NOTES [1] Section 732.201, Florida Statutes (1977): 732.201 Right to elective share. — The surviving spouse of a person who dies domiciled in Florida shall have the right to a share of the estate of the deceased spouse as provided in this part, to be designated the elective share. [2] § 732.702(2), Fla....

...Prior to their marriage, Mr. and Mrs. King made an oral agreement that neither would have a claim upon the other's separate property when he or she died. Afterwards, they memorialized this understanding in writing. The trial judge held that the provisions of Section 732.702(2), Fla....

...ective because they were not preceded by a "fair disclosure" of Mr. King's estate. Hence, the representatives' petition to disallow Mrs. King's claims was denied. Our disagreement with this position is necessarily based on our interpretation of Sec. 732.702, Fla....

...[5] On the other hand, when the marriage has already taken place, the need to foster it no longer applies; at the same time, the confidential relationship which has arisen between the parties requires that, at the least, fair disclosure form the basis of any such undertaking. The other requirement of Sec. 732.702 that the contract be in writing, which applies in all instances, is, like every such Statute of Frauds provision, simply based upon the prevention of fraudulent claims, 73 Am.Jur.2d Statute of Frauds §§ 510, 562 (1974) — a requirement whic...

...ithout fair disclosure does not affect the spouse's continuing financial obligations. Weintraub v. Weintraub, supra; Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla. 1962). [6] In this light, we ascribe no particular significance to the fact that Sec. 732.702(2) refers to agreements "executed" before or after marriage....

...Putting it somewhat differently, it is said that the failure precisely to disclose his less significant assets could not have causally affected her decision to forego her less valuable rights in his estate in return for his waiver of his more valuable rights in hers and that, therefore, the "fair disclosure" contemplated by § 732.702(2) was essentially satisfied even if no actual disclosure may have been made at all....

...Following a nonjury trial, the court found no evidence to support the allegation of nondisclosure and entered a final judgment upholding the validity of the agreement. Goldie Topper appeals therefrom. Sam Liptzen having died in October 1976, we find that Section 732.702, Florida Statutes (1975, effective January 1, 1976) [1] is controlling and, therefore, dispositive of this appeal. See Reed v. Reed, 354 So.2d 864, 866 (Fla. 1978). Specifically, subsection 2 of the statute clearly states: "732.702 Waiver of right to elect and of other rights.- * * * * * * "(2) Each spouse shall make a fair disclosure to the other of his or her estate if the agreement, contract, or waiver is executed after marriage....

...No disclosure shall be required for an agreement, contract, or waiver executed before marriage." [Emphasis Supplied] Accordingly, we affirm the determination of the trial court that the antenuptial agreement is valid. (Nevertheless, we hasten to point out that Section 732.702, Florida Statutes (1975) is part of the Probate Code and, therefore, would not be applicable to antenuptial agreements which are involved in dissolution of marriage actions.) With respect to the contention that Sam Liptzen failed to p...

...at he or she may now have or hereafter acquire as the other party's spouse ... to elect to take against any Will or Codicil of the other party now in force ...; to share in the other party's estate and to exercise any right to dower or curtesy." See § 732.702, Fla....

...32.201, and for determination of homestead in certain real property. The court entered an order declaring Joseph Maria's surviving and pretermitted spouse in accordance with sections 732.201 and 732.301, but ruled that Joseph waived his rights under section 732.702....

...Tescher, 578 So.2d 701 (Fla. 1991); Wadsworth v. First Union Nat'l Bank, 564 So.2d 634 (Fla. 5th DCA 1990). It is also clear that the surviving spouse could waive her right of election to homestead, wholly or partly, before or after marriage, by a written waiver. § 732.702(1), Fla....

...Del Vecchio, 143 So.2d 17 (Fla. 1962). The rule was later extended to dissolution of marriage situations. Posner v. Posner, 233 So.2d 381 (Fla. 1970). Subsequent to the supreme court's decisions in Del Vecchio and Posner, the legislature, in 1974, enacted section 732.702(2) pertaining to antenuptial agreements and the rights of a surviving spouse....

...squalified or such discretion is granted by statute. State v. North, 159 Fla. 351, 32 So.2d 14 (1947). Appellant asserts, however, that the release of rights contained in the separation agreement and signed by the wife, when read in conjunction with section 732.702, Florida Statutes (1981), [1] constitutes a renunciation by the wife of her right to serve as personal representative of the estate....

...Had the legislature intended the statute to cut off the *533 right of a nominated personal representative to serve in that capacity because of the execution of a property settlement agreement, it would have said so. AFFIRMED. FRANK D. UPCHURCH, Jr., and COWART, JJ., concur. NOTES [1] § 732.702 Fla....

...This is a consolidated appeal from a decision of the probate court striking the appellant widow's election to take an elective share and the general jurisdiction court's order dismissing her complaint to set aside an antenuptial agreement. The sole question presented is whether section 732.702, Florida Statutes (1983), which eliminates the need for fair disclosure for a valid antenuptial agreement in the probate context, precludes the surviving spouse from challenging such an agreement on the grounds of fraudulent nondisclosure....

...valid, the husband must make either a fair and reasonable provision for his spouse or a fair and full disclosure of his assets prior to execution of the agreement. In Estate of Roberts, 388 So.2d 216 (Fla. 1980), the supreme court acknowledged that section 732.702 abrogated the disclosure requirement in a probate context....

...osure of the whole truth. Ramel v. Chasebrook Construction Co . The voluntary assumption of the duty of disclosure then is quite different from having no duty to disclose at all. Consequently, if only the element of disclosure has been eliminated by section 732.702, that should not insulate a false promise or perverted disclosure from a decedent where he voluntarily assumed the duty to disclose....

...y into contracting the marriage. Our primary concern in the realm of statutory interpretation is to vindicate the legislative intent. Flagship National Bank of Miami v. King, 418 So.2d 275, 278 (Fla. 3d DCA 1982). The legislative purpose in adopting section 732.702(2) was to abrogate the long-established common law rule which required fair disclosure prior to execution of premarital contracts....

...sure as well as simple nondisclosure, it would have done so expressly. The most common grounds for setting aside any contract are the use of fraud, duress or undue influence in obtaining apparent assent. 11 Fla.Jur.2d 328 Contracts § 35. In finding section 732.702(2) constitutional, the supreme court declared that: [t]he right to have an antenuptial agreement set aside still exists. For example, if a wife were able to show that her signature on such an agreement had been coerced or otherwise improperly obtained or that she was incompetent at the time she signed, section 732.702(2) would not bar her challenge to the validity of the agreement....

...Since fraud is a long-standing ground for setting aside contracts, we are of the opinion that the court meant for fraud to be encompassed within the phrase emphasized above. Furthermore, this court has previously indicated that the intent of the legislature in inserting the writing requirement in section 732.702 was to safeguard against fraudulent claims....

...It is therefore apparent that this court still considers fraud a relevant consideration under the statute. The appellee in the present case relies heavily upon the decision of our sister court in Coleman v. Estate of Coleman, 439 So.2d 1016 (Fla. 1st DCA 1983). Coleman pointedly suggests that section 732.702(2) precludes the challenge of an antenuptial agreement on the ground of fraudulent nondisclosure in a probate context....

...oof thereof was barred by the dead man statute. § 90.602, Fla. Stat. (1983). In other words, the court simply held that fraudulent nondisclosure could not be proven. To the extent Coleman may be interpreted to condone fraudulent nondisclosure under section 732.702(2), we elect not to follow it....

...Hayes, 333 So.2d 51 (Fla. 4th DCA 1976). For the reasons set out above, we hold that an antenuptial agreement can be challenged on the ground of fraudulent nondisclosure, and such a challenge is not barred in a probate context by the nondisclosure provision of section 732.702(2), Florida Statutes (1983)....

...The appellant, Beatrice Shore, the decedent's wife, argues that the trial court erred in reviving the prenuptial agreement after concluding that the postnuptial agreement was invalid due to the decedent's failure to make a financial disclosure pursuant to section 732.702(2), Florida Statutes (1989)....

...ptial agreement. If the postnuptial agreement had been valid, the original obligation under the prenuptial agreement would have been discharged. Yet, the postnuptial agreement was invalid because neither party made a financial disclosure pursuant to section 732.702(2)....

...The parties hereto acknowledge that they fully understand the rights he and she would have in the homestead under Florida law and waive those rights by this Agreement and specifically this Section 4.1.5. 4.2 The waiver contained herein is to be broadly construed pursuant to Section 732.702, Florida Statutes....

...oad, reciprocal waiver in which Andrea waived all rights to Jeffrey's separate property and estate. The probate court agreed and entered an order determining that "[t]he application of Paragraph 4.1 of the Post-Nuptial Agreement and Florida Statutes Section 732.702 creates a waiver of all of the Surviving Spouse's rights under the Decedent's will." Andrea appealed....

...4th DCA 2007) (citing *760 Knight v. Winn, 910 So.2d 310, 312 (Fla. 4th DCA 2005)). In the instant case, the probate court did not err in determining that Andrea waived her right to be a beneficiary under the will by executing the Post-Nuptial Agreement. Section 732.702(1), Florida Statutes (2007), states that The rights of a surviving spouse to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representativ...

...y 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. (2007) (emphasis added). Tracking the language in section 732.702(1), the Post-Nuptial Agreement refers to the parties waiving "all rights" several times: Each party freely and voluntarily irrevocably waives all rights in the earnings, property and estate of the other as well as any right to alimony...

...at law, next of kin or distributee, upon or by virtue of a termination of the marriage of the parties by death, divorce, dissolution of marriage, annulment or otherwise.... .... 4.2 The waiver contained herein is to be broadly construed pursuant to Section 732.702, Florida Statutes....

...use, or in any other manner by operation of law, and each hereby releases all marital property rights, including but not limited to homestead rights under the laws of the State of Florida or any other jurisdiction. Id. at 661. Ultimately, relying on section 732.702(1), the court determined that it had "no difficulty in deciding that the language of the antenuptial agreement was sufficient to waive Marcella's rights to take under the provisions of Sheldon Hulsh's will." Id....

...Estate of Coleman, 439 So.2d 1016 (Fla. 1st DCA 1983). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The issue here is whether a surviving spouse may challenge an antenuptial agreement based upon fraudulent nondisclosure of assets by a decedent spouse, in light of section 732.702, Florida Statutes (1983), which requires no disclosure for a valid antenuptial agreement in probate....

...The probate court struck Moldofsky's motion for elective share. Following this order, the trial court dismissed on mootness and res judicata grounds the pending action to cancel the antenuptial agreement. The district court reversed both orders on appeal. While acknowledging that section 732.702 eliminated the disclosure requirement for an antenuptial agreement to be valid in probate, the district court held that a surviving spouse could challenge an antenuptial agreement for fraudulent nondisclosure by the deceased spouse....

...and reasonable provisions for the spouse waiving his or her rights or else the *207 spouse obtaining the waiver of rights must make a full and fair disclosure of assets to the other spouse. Id. at 20. The legislature changed this rule by enacting subsection 732.702(2), which provides: "Each spouse shall make a fair disclosure to the other of his or her estate if the agreement, contract, or waiver is executed after marriage....

...No disclosure shall be required for an agreement, contract, or waiver executed before marriage." (Emphasis added). We held this statute constitutional against access to courts, due process, and equal protection challenges. Estate of Roberts, 388 So.2d 216 (Fla. 1980). Relying on subsection 732.702(2), the Coleman court affirmed the denial of a surviving spouse's motion to amend pleadings and attack an otherwise valid antenuptial agreement for nondisclosure by the decedent spouse before execution of the antenuptial agreement....

...Coleman held that nondisclosure, however pled, could not constitute a basis for invalidating an antenuptial agreement in probate proceedings because the statute required no disclosure in such cases. 439 So.2d at 1018-19. In the present case, on the other hand, the district court interpreted subsection 732.702(2) to eliminate the disclosure duty before marriage, but not the duty that any disclosure be made truthfully....

...Nondisclosure, whether fraudulent or not, is precisely what the legislature intended to eliminate from consideration on the validity of antenuptial agreements. Many older Florida residents want to marry again but also want to keep their assets separate. Often this is the desire of both parties contemplating marriage. Section 732.702 allows complete control over assets accumulated over a lifetime without fear that a partial disclosure before marriage may trigger an unwanted disposition of those assets....

...The agreement provides in part that decedent "is the owner of real and personal property in his own right" and that "the agreement is entered into by the parties hereto with full knowledge on the part of each of the extent and probable value of all of the property or estate of the other." Section 732.702, Florida Statutes [1] relieved each party from making a disclosure of his or her assets, and so long as neither made any disclosure, the agreement could not be set aside, but if either party, in my opinion, made any disclosure of his...

...utgert presumption of undue influence or overreaching does not apply to antenuptial agreements contested in probate. As support, petitioners cite Ellis First National Bank v. Downing for the proposition that such a presumption is not warranted under section 732.702, Florida Statutes (1983), which provides in part: (1) The right of election of a surviving spouse, the rights of the surviving spouse as intestate successor or as a pretermitted spouse, and the rights of the surviving spouse to homest...

...In Estate of Roberts, 388 So.2d 216, 217 (Fla. 1980), we specifically stated: [I]f a wife were able to show that her signature on such an agreement had been coerced or otherwise improperly obtained or that she was incompetent at the time she signed, section 732.702(2) would not bar her challenge to the validity of the agreement.

...Florida courts have consistently upheld waivers of alimony provided that the waivers are stated in express terms. See Cunningham v. Cunningham, 499 So.2d 880, 882 (Fla. 1st DCA 1986). The wife need not have full knowledge of the husband’s worth prior to signing the document. See § 732.702(2) Fla....

...Consequently, ordinarily, “equitable principles cannot operate to nullify a homestead interest.” Rutherford v. Gascon, 679 So. 2d 329, 331 (Fla. 2d DCA 1996). Such an interest, however, may be waived. Waiver has been recognized by both legislative enactment and judicial imprimatur. See § 732.702(1), Fla....

...nstrate the survivor’s intent to waive the constitutional and statutory claim to homestead property.” 9 Rutherford, 679 So. 2d at 331. In this context, waiver is statutorily circumscribed. Section 732.702(1), Florida Statutes, authorizes a spouse to waive homestead rights “before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses.” In such circumstances, “[u]nless the waiver provides to the contrary, a waiver of ‘all rights,’ or equivalent language,” may constitute a waiver of all homestead rights that would otherwise inure to the benefit of the waiving spouse. Id.; see also § 732.7025(1), Fla....

...otherwise prevent my spouse from devising the homestead property described in this deed to someone other than me.’”). If the waiver is executed after marriage, each spouse is additionally required to make a fair disclosure to the other of his or her estate. § 732.702(2), Fla....

...Against this background, we examine the instant case. Here, all three waivers were executed after marriage. Yet, the undisputed evidence established that Schocket was not provided with a fair disclosure of Silver’s estate. This omission runs afoul of the applicable statutory scheme. See § 732.702(2), Fla....

...language than the mortgage waivers, as indicated previously, it, too, fails for a myriad of reasons. First, as previously noted, despite the fact that it was executed after marriage, it was not accompanied by fair disclosure of Silver’s estate. See § 732.702(2), Fla. Stat. Second, section 732.702(1), Florida Statutes, anticipates that a party will contract with “a present or prospective spouse” or in anticipation of “separation, dissolution of marriage, or divorce.” The statute does not contemplate contracting with...

the parties litigated the application of section 732.702(2), Florida Statutes (2019), a provision of

other party whose lips are sealed by death. Section 732.702(2), Florida Statutes (1983)1 makes valid all

...the case law then in effect required disclosure. Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla. 1962). Appellant argues that the law in effect at the time of the decedent’s death applies, and the statute then in effect did not require disclosure. § 732.702(2), Fla....

...3d DCA), petition for review denied, 407 So.2d 1103 (Fla.1981); Topper v, Stewart, 388 So.2d 1270 (Fla. 3d DCA 1980), petition for review denied, 397 So.2d 779 (Fla.1981). The Supreme Court of Florida has looked to the date of death to determine whether to apply section 732.702, Florida Statutes (1975)....

...The case of Ellis First National Bank of West Pasco v. Downing, 443 So.2d 337 (Fla. 2d DCA 1983), urged upon us by appellee, is distinguishable on its facts. In Downing , the signing of the agreement and the death of the decedent both occurred after the effective date of section 732.702(2)....

...2d 946, 948 (Fla. 1988))). One of the key disputes below and on appeal is whether the Wife waived her interests in the decedent’s homestead in the prenuptial agreement. In the probate proceeding below, the parties litigated the application of section 732.702(2), Florida Statutes (2019), a provision of Florida’s Probate Code, which provides: Each spouse shall make a fair disclosure to the other of that spouse’s estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage. § 732.702(2), Fla. Stat. (2019). The Wife sought to apply Massachusetts law to the agreement because Massachusetts law required full financial disclosure for marital agreements entered into both before and after marriage. The Children sought to apply section 732.702(2) because no 6 financial disclosure is required to validate a marital agreement executed before marriage....

...specific statutes addressing the requirements for waiver of homestead protection, we affirm the probate court’s decision to apply Florida law, rather than Massachusetts law, to the prenuptial agreement’s validity. 1 Below and on appeal, neither party argued the applicability of section 732.702(1), Florida Statutes (2019), which provides in part: (1) The rights of a surviving spouse to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in ap...

...representative of an intestate estate or any of those rights, 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. § 732.702(1), Fla. Stat. (2019) (emphases added). The application of section 732.702(1) appears significant in this case because the prenuptial agreement was signed only by the two parties and a notary public. Because the applicability of section 732.702(1) was not argued below or in the briefs, we do not apply it to our analysis. In compliance with a focus order we issued requesting that the parties be prepared to address the applicability of section 732.702(1) at oral argument, the parties made certain arguments....

...hare of her deceased husband's estate under section 732.201, Florida Statutes (2013). The trustee filed an objection to Sudman's election, alleging that Sudman had waived her right to take the elective share by signing a prenuptial agreement. See § 732.702(1)....

...The chancellor held the agreement valid but for the husband’s nondisclosure, and the parties here treat the terms of the agreement, if it is valid, as conclusive on the question of alimony. The common law disclosure requirement enforced by the chancellor was eliminated for certain purposes, at least, by a 1974 amendment to Section 732.702, Florida Statutes (1979): (2) Each spouse shall make a fair disclosure to the other of his or her estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage. (Emphasis added.) The effect of this amendment was to eliminate those common law restrictions on “contractual arrangements relating to death,” Section 732.702(1), which were expressed by Del Vecchio v....

...ecedent may be thought to encourage divorce rather than faithfulness in marriage unto death, we certify to the Supreme Court that we have passed on a question of great public importance, Article V, Section 3(b)(4), Florida Constitution, namely: Does Section 732.702(2) validate premarital agreements otherwise invalid under Del Vecchio v....

Spangenberg. In Trapani, this court held that section 732.702, Florida Statutes (1985), does not require

...Stephen passed away on January 17, 2022. The Guardianship Program sought to quiet title in Sharyn and for a declaration that the quit-claim deed was void because it failed to contain language indicating the intent to waive homestead rights as required by section 732.7025, Florida Statutes....

...The Guardianship Program moved for partial summary judgment and argued it was entitled to judgment as a matter of law on the issue of Rogers’ ownership interest because the quit-claim deed he was claiming under was void ab initio based on its failure to comply with section 732.7025....

...ouses and is to be liberally construed for their benefit. Feldman v. Schocket, 366 So. 3d 1104, 1108 (Fla. 3d DCA 2022). Equitable principles cannot operate to nullify a homestead interest, but such an interest may be waived. Id. In this regard, section 732.7025(1), Florida Statutes (2021), provides: A spouse waives his or her rights as a surviving spouse with respect to the devise restrictions under s....

...spouse from devising the homestead property described in this deed to someone other than me.” It is undisputed that such language, or even substantially similar language, was not included in the quit-claim deed here. Rogers attempts to discount section 732.7025 by arguing that “[t]he statute does not provide that the deed must include this specific language to 8 constitute a waiver.” Rogers asserts the statute is merely intended to provide guidance and “is illustrative of the point that language waiving a constitutional right must be able to be clearly understood as waiving the right.” See Thayer v. Hawthorn, 363 So. 3d 170, 174 (Fla. 4th DCA 2023). Instead, Rogers seeks to rely on section 732.702(1), Florida Statutes, which authorizes a spouse to waive homestead rights “before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses.” The st...

...waiver of all homestead rights that would otherwise inure to the benefit of the waiving spouse. Id.; see also Feldman, 366 So. 3d at 1109. If the waiver is executed after marriage, each spouse is additionally required to make a fair disclosure to the other of his or her estate. § 732.702(2), Fla....

...Stat.; see also Feldman, 366 So. 3d at 1109. Rogers relies on the Fourth District’s decision in Stone v. Stone, 157 So. 3d 295 (Fla. 4th DCA 2014), which found that the language contained in a warranty deed constituted a waiver of homestead rights, applying section 732.702(1)....

...ude her constitutional right to the inheritance of the homestead.” Id. No similar reference is included in the quit-claim deed here, rendering the quit-claim deed “insufficient to constitute a written waiver of homestead rights as required by section 732.702(1).” Id. Furthermore, as the Thayer court noted, “Stone generated concern as to what language in a deed would constitute a waiver of homestead rights.” Id....

...at 173-74 (citing Jeffrey S. Goethe & Jeffrey A. Baskies, Homestead 10 Planning Under Florida's New “Safe Harbor” Statute, 93 Fla. B. J. 36 (May/June 2019)). These concerns resulted in the enactment of section 732.7025. See, e.g., Florida Staff Analysis, S.B. 512, 2/1/2018. Accordingly, the enactment of section 732.7025 calls into question whether the language deemed sufficient in Stone would be sufficient to waive homestead rights today. We agree with the trial court’s conclusion here that the quit-claim deed failed to include the neces...

...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).  Doris and James Hawthorn were married in July of 1978, until James’ presumed death in July of 2014....

...ve 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 marriag...

...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....

...demonstrated both spouses’ intent to waive their homestead rights. 3  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....

...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: 4  The rights of a surviving spouse to ....

..., 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....

...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). 5  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....

...ht 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....

...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)....

...Waiver and consent by interested person. § 732.103, Fla. Stat. Share of other heirs. § 732.104, Fla. Stat. Inheritance per stirpes. § 732.401, Fla. Stat. Descent of homestead. § 732.4015, Fla. Stat. Devise of homestead. § 732.702, Fla. Stat. Waiver of spousal rights. § 732.7025, Fla....

...In explaining his final decision after this bitter trial, Judge Kenney held that there was no basis to avoid the agreement on any of the theories posed: fraud, duress, lack of capacity, lack of disclosure, lack of competent legal advice, “or other similar grounds.” Nevertheless, he concluded, section 732.702, Florida Statutes (1991), “does not mean what it says, when applied to reconciled spouses.” He thus held that the subject post nuptial settlement agreement was not an enforceable waiver of an elective share for reconciled spouses....

...sequence of events was governed by Weeks . We do not agree that Weeks controls, but Judge Kenney was required to follow Delgado ’s holding that it does. We begin first with the text of the statute which the court felt did not mean what it says: “732.702 Waiver of right to elect and of other rights....

...agreement was to permit the parties to reconcile! To hold that the later reconciliation had paradoxically abrogated their contract would turn the agreement on itself. The purpose would cannibalize the deed. Certainly there is nothing in the text of section 732.702 remotely suggesting such a “Through The Looking-Glass” result....

...Delgado was thus directly on point, and Judge Kenney was bound to follow it. Weiman v. McHaffie, 448 So.2d 1127 (Fla.1984); and State v. Hayes, 333 So.2d 51 (Fla. 4th DCA 1976). We simply find the third district’s decision in Delgado unpersuasive and certify our conflict with it. If section 732.702 does not entirely overrule Weeks , surely it codifies the public policy of this state initially set forth in Miller ....

...There is nothing in any case cited by the parties or relied on by trial judge that persuades us to do so. In the end, we are convinced that the short answer to the wife’s contention that she is not bound by the agreement waiving any participation in her husband’s probate estate is found in the agreement itself and in section 732.702....

...personal representative of the decedent’s estate. Appellant argues the probate court erred in three respects: (1) by finding the decedent’s and the wife’s partial marital settlement agreement was not a complete property settlement pursuant to section 732.702, Florida Statutes (2019); (2) alternatively, by failing to deem language in the partial marital settlement agreement to be equivalent to a waiver of spousal rights; and (3) by finding the decedent’s divorce attorney’s affidavit to...

...summary judgment motion and appointing the wife as personal representative of the decedent’s estate. The probate court found the partial marital settlement agreement did not contain any language which could constitute a waiver of spousal rights pursuant to section 732.702(1), Florida Statutes (2019)....

...4th DCA 2008) (a postnuptial agreement, like any other contract, is subject to de novo review). We conclude the probate court properly found the partial marital settlement agreement did not contain any language which could constitute 2 a waiver of spousal rights pursuant to section 732.702(1), Florida Statutes (2019). Section 732.702 requires a spouse’s explicit waiver of intestate rights: (1) The rights of a surviving spouse to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference...

...that spouse’s estate if the agreement, contract, or waiver is executed after marriage.… (3) No consideration other than the execution of the agreement, contract, or waiver shall be necessary to its validity, whether executed before or after marriage. § 732.702(1-3), Fla. Stat. (2019). Pursuant 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. 3  The brother relies on the phrase “complete property settlement” in section 732.702(1), and on Snow v....

...First, the subject marital settlement is not a complete settlement as it did not clearly, specifically and explicitly settle all matters of dispute between the parties. Second, Snow did not address a surviving spouse’s waiver of intestate rights pursuant to section 732.702(1)....

...Foster to his lineal descendants. Ms. Foster filed a notice of her election to take her elective share pursuant to section 732.201, et seq., Florida Statutes (2006). The personal representative moved to strike the petition for elective share, citing section 732.702(1), Florida Statutes (2006), and the antenuptial agreement....

...Foster waived her right to an elective share of the estate and that Mr. Gomes's failure to disclose a minor asset did not affect the enforceability of the agreement. This appeal followed. Florida law does not require prior disclosure of assets for an antenuptial agreement. § 732.702(2)....

was invalid pursuant to section 732.702, Florida Statutes (1985). Section 732.702 provides in subsection

...It is undisputed that the marriage between Oliveira and Monique Sturm had not been legally dissolved at the time of Ms. Sturm’s death. As a result, Oliveira was Ms. Sturm’s legal spouse at the time of her death and is entitled to the entire intestate estate, unless a valid waiver or disclaimer, see §§ 732.702(2), .801, Fla.Stat. (1991), was executed by him. The trial court erred in determining that the September 27 affidavit was a valid waiver of Oliveira’s rights pursuant to section 732.702(2)....

...mechanism is capable of waiving the restraint against the devise. Compare Rangel, 325 So. 3d at 266 (Nardella, J., specially concurring) (observing that if restraint against devise can be waived by valid premarital agreement under 9 section 732.702(a), Florida Statutes, there is no reason to prohibit spouse from waiving restraint on alienation by same method, as allowing waiver of restraint on alienation is consistent with allowing restraint on devise this way); with § 732.7025, Fla....

...2d 1054, 1056 (Fla. 7 1st DCA 2008). See also Rogers, 408 So. 3d at 851; Schlossberg v. Est. of Kaporovsky, 303 So. 3d 982, 987 (Fla. 4th DCA 2020). But these rights, like most, can be waived. See generally Thayer v. Hawthorn, 363 So. 3d 170, 173 (Fla. 4th DCA 2023); § 732.702(1), Fla. Stat. (setting forth waiver of spousal rights through contracts and agreements); § 732.7025, Fla....

...2d 329, 331 (Fla. 2d DCA 1996). Mendia maintains Galvez did so. As evidence of this intent, he points to the post-nuptial agreement and quitclaim deed. Since those documents were executed in 1998, we must look to the statutes in effect at that time. Section 732.702, Florida Statutes, provided: The right of election of a surviving spouse, the rights of the surviving spouse as intestate successor or as a pretermitted spouse, and the rights of the surviving spouse to homestead,...

...property of the other and a renunciation by each of all benefits that would otherwise pass to either from the other by intestate succession or by the provisions of any will executed before the waiver or property settlement. § 732.702(1), Fla....

...including any such rights which might be claimed under the laws of dower, courtesy [sic], or the elective share of a spouse, . . . homestead rights. . . .”), and Steffens v. Evans, 70 So. 3d 758, 759 (Fla. 4th DCA 2011) (finding waiver where post-nuptial agreement stated 3 In 2018, the Legislature enacted section 732.7025, Florida Statutes, which mandates certain language in a deed in order to effectuate a waiver. § 732.7025(1), Fla....

...In other words, it makes the waiver contingent upon the subsequent dissolution of marriage proceedings—an event that never occurred here. This falls into the statute’s text—“Unless it provides to the 10 contrary.” § 732.702(1), Fla....

...marital home. 1. Mutual Release Provisions The Florida legislature has provided that a spouse may waive his or her homestead rights wholly or partly in a contract signed in the presence of two subscribing witnesses. See § 732.702(1)....

...against the other, except for the dissolution of marriage action to be filed subsequent to the execution of this Agreement. (Emphasis added.) This language is the type of "all rights" language that provides for a waiver of homestead under section 732.702(1). However, the parties' release of each other "from all claims or demands up to the date of execution of this Agreement" and "from all causes of action, claims, rights, or demands, in law or in equity" is a waiver of all homestead rights "in the property of the other." See § 732.702(1) (emphasis added)....

...Kerzner, 77 So. 3d 214, 216-17 (Fla. 3d DCA 2011); Myers v. Lehrer, 671 So. 2d 864, 866-67 (Fla. 4th DCA 1996). Indeed, once an MSA containing such provisions is incorporated into a final judgment, it is analogous to the written homestead waivers enforced under section 732.702(1)....

...The trial court did not reach this issue, nor do we. We note, however, that at the time of their marriage, Rosemarie and Hubert Calhoun could have agreed that Rosemarie waive her right to homestead property, thus allowing the homestead property to pass by Hubert’s will. Section 732.702(1), Florida Statutes (1975)....

PER CURIAM. AFFIRMED. Estate of Roberts, 388 So.2d 216 (Fla.1980); Section 732.702(2), Florida Statutes (1976); Rule 1.100(a), Fla.R.Civ.P.

...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). Doris and James Hawthorn were married in July of 1978, until James’ presumed death in July of 2014....

...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 marriag...

...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....

...described herein.” Regardless, appellee argued the warranty deed demonstrated both spouses’ intent to waive their homestead rights. 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....

...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: The rights of a surviving spouse to ....

..., 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....

...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). 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: 5  (1) A spouse waives his or her rights as a surviving spouse with respect to the devise restrictions under s....

...ht 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....

...6  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)....