Third District Court of Appeal
State of Florida
Opinion filed September 21, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1509
Lower Tribunal No. 16-141-P
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Robert Feldman, etc.,
Appellant,
vs.
Jeffrey Schocket,
Appellee.
An appeal from the Circuit Court for Monroe County, Luis Garcia,
Judge.
Annesser Armenteros, PLLC, John W. Annesser, and Megan Conkey
Gonzalez, for appellant.
Tom Woods P.A., and Tom Woods, for appellee.
Before FERNANDEZ, C.J., and EMAS, and MILLER, JJ.
MILLER, J.
Appellant, Robert Feldman, acting in his capacity as Personal
Representative of the Estate of Patricia Silver, challenges a final judgment
granting appellee, Jeffrey Schocket, Silver’s widower, homestead rights
pursuant to a petition for declaratory relief. Silver died testate while married
to Schocket. In her will, she directed that her homestead be sold and the
proceeds placed in the residue for distribution along with her other assets.
The trial court determined that two mortgage waivers and a spousal waiver
were ineffective to override the constitutional homestead protection afforded
to Schocket that otherwise prevented Silver from directing the sale of the
property. Discerning no error, we affirm.
BACKGROUND
Schocket and Silver were married in 2003. During their marriage, they
resided together at 208 Buttonwood Lane, Islamorada, Florida. In 2015,
Silver mortgaged the Islamorada property to obtain a loan to fund her law
firm, the Silver Law Firm, P.A. Schocket signed two mortgages. Both
mortgages contained identical waivers, providing, in relevant part:
“Mortgagor, [Schocket], is joining in the execution of this mortgage for the
sole purpose of waiving his or her homestead rights under Article X, Section
4 of the Florida Constitution, and shall not be bound by the terms, conditions
2
or warranties contained in this instrument.” The mortgages were notarized,
witnessed by two persons, and duly recorded.
On October 26, 2016, Silver passed away. Silver’s will, executed two
days before her death, provided that the Islamorada property “shall be sold
by [Silver’s] executor, the proceeds of which . . . shall become part of
[Silver’s] residuary estate. Until such time as the property is sold, my
husband Jeffrey Schocket may reside in the property.”
Schocket continued to reside at the property, and on November 17,
2016, Feldman presented him with a spousal waiver. Schocket signed the
waiver in the presence of two attesting witnesses, but the document was not
notarized or recorded. According to Schocket, Feldman informed him that
signing the document would enable the Estate to “pay the bills to maintain
the house” and allow Feldman to serve as executor. Schocket attested he
“didn’t read the document” and “wasn’t aware of [his] rights or interest in the
property at that time.”
The spousal waiver provided:
I, JEFFREY SCHOCKET, herby [sic] waive, any and all right,
title, and interest I have in the property . . . . Specifically . . . any
rights, title and/or interest that I may have to claim that the
aforementioned property is exempt and/or excluded from my
wife, Patricia M. Silver’s estate pursuant to Florida Statute
§732.401 or Florida Statute §732.4015.
3
On December 30, 2016, Feldman was appointed Personal
Representative of the Estate. Although Schocket remained in possession of
the property, the Estate maintained the property and satisfied all related
expenses.
In September of 2017, the property sustained damage during
Hurricane Irma, rendering it uninhabitable. The following month, Feldman
notified Schocket he had procured a potential buyer for the property.
Schocket then filed suit seeking a determination that the property was
homestead property. In response, Feldman filed an answer and raised the
following affirmative defenses: (1) set-off; (2) waiver; (3) laches; (4) failure to
mitigate damages; and (5) estoppel.
Schocket sought summary judgment under Florida’s “old” summary
judgment rule. See Fla. R. Civ. P. 1.510(c) (2020) (“The judgment sought
must be rendered immediately if the pleadings and summary judgment
evidence on file show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.”). The
court convened a hearing and granted the motion, in part. In the ensuing
order, the court found: (1) the 2015 mortgage waivers were limited to the
mortgage agreement; and (2) the 2016 spousal waiver was procedurally
4
noncompliant and ineffective because, upon Silver’s death, Schocket
acquired a vested fee simple interest in the property.
Schocket subsequently filed a renewed motion under the “new”
summary judgment rule, seeking to extinguish Feldman’s affirmative
defenses. See Fla. R. Civ. P. 1.510(a) (2022) (“The court shall grant
summary judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of
law.”); In re Amends. to Fla. Rule of Civ. Proc. 1.510,
309 So. 3d 192, 192
(Fla. 2020) (explaining transition to federal summary judgment standard,
effective May 1, 2021). The trial court granted the motion, and the instant
appeal ensued.
STANDARD OF REVIEW
We review a grant of summary judgment de novo. Volusia Cnty. v.
Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126, 130 (Fla. 2000). In this
case, the parameters of our review are further informed by both Florida’s
“old” and “new” summary judgment standards. Pursuant to the old standard,
summary judgment was proper “if there [was] no genuine issue of material
fact and if the moving party [was] entitled to a judgment as a matter of law.”
Id. In accordance with this test, “the existence of any competent evidence
creating an issue of fact, however credible or incredible, substantial or trivial,
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stop[ped] the inquiry and preclude[d] summary judgment, so long as the
‘slightest doubt’ [was] raised.” Bruce J. Berman & Peter D. Webster,
Berman’s Florida Civil Procedure § 1.510:5 (2020 ed.). Under the new
standard, which mirrors its federal counterpart and aims “to improve the
fairness and efficiency of Florida’s civil justice system, to relieve parties from
the expense and burdens of meritless litigation, and to save the work of juries
for cases where there are real factual disputes that need resolution,” we view
the evidence through a slightly different lens. In re Amends. to Fla. Rule of
Civ. Proc. 1.510, 309 So. 3d at 194; see Fla. R. Civ. P. 1.510(a) (2022). The
amended rule states that summary judgment is appropriate where “there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fla. R. Civ. P. 1.510(a) (2022). Accordingly,
“the correct test for the existence of a genuine factual dispute is whether ‘the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’” In re Amends. to Fla. Rule of Civ. Proc. 1.510,
317 So.
3d 72, 75 (Fla. 2021) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242,
248 (1986)). In other words, “[i]f the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.” Anderson,
477
U.S. at 249–50 (citations omitted).
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ANALYSIS
Resolution of this dispute is governed by a convergence of the
constitutional and statutory provisions that govern the unique homestead
protections afforded under Florida law. “The first appearance of homestead
provisions was in the 1868 Florida Constitution, and it was intended to
prevent wholesale loss of homes and farms after the conclusion of the Civil
War.” Tae Kelley Bronner & Rohan Kelley, Homestead and Exempt
Personal Property, in Prac. Under Fla. Prob. Code § 19.3 (10th ed. 2020).
Given their unique characteristics, Florida’s homestead laws have been
repeatedly characterized as “our legal chameleon.” See generally Harold B.
Crosby & George John Miller, Our Legal Chameleon, the Florida Homestead
Exemption I-III,
2 U. Fla. L. Rev. 12 (1949). Homestead protection “will be
given different meanings depending on the context in which it is used.” S.
Walls, Inc. v. Stilwell Corp.,
810 So. 2d 566, 568–69 (Fla. 5th DCA 2002);
see Bowers v. Mozingo,
399 So. 2d 492, 493 (Fla. 3d DCA 1981); Willens v.
Garcia,
53 So. 3d 1113, 1119 (Fla. 3d DCA 2011).
The Florida Constitution extends three distinct protections to
homestead property. See art. X, § 4, Fla. Const. “First, a clause . . . provides
homesteads with an exemption from taxes. Second, the homestead
provision protects the homestead from forced sale by creditors. Third, the
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homestead provision delineates the restrictions a homestead owner faces
when attempting to alienate or devise the homestead property.” Snyder v.
Davis,
699 So. 2d 999, 1001–02 (Fla. 1997) (footnotes omitted). This case
involves the third protection.
Article X, section 4(c) of the Florida Constitution provides, in pertinent
part:
The homestead shall not be subject to devise if the owner is
survived by spouse or minor child, except 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.
See also § 732.401(1), Fla. Stat. (2022) (“If not devised as authorized by law
and the constitution, the homestead shall descend in the same manner as
other intestate property; but if the decedent is survived by a spouse and one
or more descendants, the surviving spouse shall take a life estate in the
homestead, with a vested remainder to the descendants in being at the time
of the decedent’s death per stirpes.”). By preserving the homestead status
of the property, this provision “is designed to protect two classes of persons[,]
. . . surviving spouses and minor children.” Wadsworth v. First Union Nat’l
Bank of Fla.,
564 So. 2d 634, 636 (Fla. 5th DCA 1990).
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“[T]he homestead law is to be liberally construed for the benefit of the
surviving spouse it was designed to protect.” In re Est. of Donovan,
550 So.
2d 37, 39 (Fla. 2d DCA 1989). 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. Stat. (2022); see also City Nat’l
Bank of Fla. v. Tescher,
578 So. 2d 701, 703 (Fla. 1991) (“[W]hen a decedent
is survived by no minor children and the surviving spouse has waived
homestead rights, there is no constitutional restriction on devising
homestead property.”); Hartwell v. Blasingame,
564 So. 2d 543, 545 (Fla. 2d
DCA 1990) (“[W]e see no reason for the state to prohibit [the surviving
spouse] from validly waiving her homestead rights at the inception of the
marital relationship which invoked those rights.”); In re Amend. to the Rules
Regulating the Fla. Bar—Rule 4-1.5(f)(4)(B) of the Rules of Pro. Conduct,
939 So. 2d 1032, 1038 (Fla. 2006) (“Florida’s highly valued constitutional
homestead protection is subject to waiver.”).
“In order to find that a survivor spouse has waived/relinquished
homestead protection, evidence must demonstrate the survivor’s intent to
waive the constitutional and statutory claim to homestead property.”
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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. Stat. (2022) (“A spouse
waives his or her rights as a surviving spouse with respect to the devise
restrictions under [section] 4(c), Art. X of the State Constitution if the
following or substantially similar language is included in a deed: ‘By
executing or joining 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.’”). 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. Notably,
the statute contains no provision for effectuating waiver after death.
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Section 739.104, Florida Statutes (2022), further allows a beneficiary
to disclaim an interest in property. Pursuant to the statute, any disclaimer
must:
(i) be in writing, (ii) declare that the writing is a disclaimer, (iii)
describe the interest or power disclaimed, (iv) be signed by the
person making the disclaimer, (v) be witnessed and
acknowledged in the manner provided for by deeds of real
estate, and (vi) be delivered in the manner provided in section
739.301 of the Florida Statutes.
Lee v. Lee,
263 So. 3d 826, 827 (Fla. 3d DCA 2019); see § 739.104(3), Fla.
Stat. Like a deed, the disclaimer must further comply with chapter 695,
Florida Statutes, which states:
An acknowledgment or a proof may be taken, administered, or
made within this state by or before a judge, clerk, or deputy clerk
of any court; a United States commissioner or magistrate; or any
notary public or civil-law notary of this state, and the certificate of
acknowledgment or proof must be under the seal of the court or
officer, as the case may be.
§ 695.03(1), Fla. Stat. (2022). 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. Stat. Further, nowhere do the
mortgage waivers reference the constitutional prohibition on devise in the
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event a decedent is survived by a spouse or minor child. Instead, by their
plain language, the mortgage waivers were executed for a qualified purpose.
Without Schocket’s signature, the mortgages would not constitute a valid lien
on the property. See Pitts v. Pastore,
561 So. 2d 297, 301 (Fla. 2d DCA
1990). Thus, his signature was necessary to facilitate the constitutionally
permissible purpose of “alienat[ing] the homestead by mortgage.” See art.
X, § 4(c), Fla. Const.
Further, in Chames v. DeMayo,
972 So. 2d 850 (Fla. 2007), echoing
the words of this court, Justice Cantero sagaciously cautioned against
enforcing boilerplate homestead waivers buried within documents of other
legal significance:
[T]he waiver of the homestead exemption will become an
everyday part of contract language for everything from the hiring
of counsel to purchasing cellular telephone services. The
average citizen, who is of course charged with reading the
contracts he or she signs . . . often fails to read or understand
boilerplate language detailed in consumer purchase contracts,
language which the contracts themselves often permit to be
modified upon no more than notification in a monthly statement
or bill. . . . [S]uch consumers may lose their homes because of
a “voluntary divestiture” of their homestead rights for nothing
more than failure to pay a telephone bill. This inevitably will result
in whittling away this century old constitutional exemption until it
becomes little more than a distant memory.
Id. at 862 (alterations in original) (quoting DeMayo v. Chames, 30 Fla. L.
Weekly D2692, D2695–96 (Fla. 3d DCA Nov. 30, 2005) (Wells, J.,
12
dissenting)). In this case, the qualified mortgage waivers were buried within
documents of other legal significance. Under these circumstances, we
conclude, as did the trial court, that the mortgage waivers are procedurally
deficient and insufficient to “evince an intent by [Schocket] to waive [his]
homestead rights.” Rutherford,
679 So. 2d at 330.
Although the post-death spousal waiver contains more expansive
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 a deceased spouse.
Third, in placing their imprimatur upon waiver, courts have embraced the
legal fiction that a waiver executed before or during marriage is the “legal
equivalent of the prior death of the [spouse].” Jacobs v. Jacobs,
633 So. 2d
30, 32 (Fla. 5th DCA 1994) (quoting Wadsworth,
564 So. 2d at 635); see
also In re Slawson’s Est.,
41 So. 2d 324, 326 (Fla. 1949). This legal fiction
removes the constitutional impediment to devising the homestead property.
See Jacobs,
633 So. 2d at 32; Wadsworth,
564 So. 2d at 635. In the absence
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of a waiver, however, the property passes by operation of law to the surviving
spouse upon the death of the decedent. See Rutherford,
679 So. 2d at 331.
Here, because the mortgage waivers failed, Schocket’s property interest
vested upon Silver’s death. Thus, the post-death spousal waiver was too
little, too late.
Feldman alternatively argues that the spousal waiver should be
construed as a disclaimer. This argument fails on both procedural and
substantive grounds.
Critically, the waiver is not statutorily compliant. It does not purport to
be a disclaimer, it was not acknowledged before “a judge, clerk, or deputy
clerk of any court; a United States commissioner or magistrate; or any notary
public or civil-law notary of this state,” and it was not recorded. § 695.03(1),
Fla. Stat.; see § 739.104(3), Fla. Stat.; § 695.26(1), Fla. Stat. (2022). The
disclaimer statute makes no provision for partial compliance.
Notwithstanding these deficiencies, Feldman relies upon Youngelson
v. Youngelson’s Estate,
114 So. 2d 642 (Fla. 3d DCA 1959), for the
proposition that the spousal waiver is enforceable under our precedent. In
Youngelson, the husband and wife executed a post-nuptial agreement.
Id.
at 643. The wife agreed, upon her husband’s death, to release “all rights
and claims in and to the Estate[,] . . . including rights of dower . . . [and]
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homestead rights.”
Id. Following the death of her husband, the wife entered
into a settlement agreement with the personal representative and other heirs,
affirming her release of any rights in the estate.
Id. Shortly thereafter, she
filed a petition to void the settlement agreement and sought to have the
property declared as homestead property.
Id. The trial court denied relief.
Id.
This court affirmed on appeal, finding that the settlement agreement
was presumptively valid and could only be set aside upon a showing of fraud
or overreaching.
Id. at 644. With regard to relinquishing homestead
protection, the court noted “that a prohibition would not be in keeping with
the best interest of litigants seeking to settle estates,” and, while “courts do
not favor a release of homestead rights[,] . . . . homestead rights [can] be
legally dealt with by a widow in whom they have vested.”
Id.
Although the holding in Youngelson remains undisturbed, the instant
case is distinguishable. There was no post-death settlement here, and,
perhaps more importantly, long after Youngelson was decided, the
legislature exercised its prerogative to enact chapter 739 of the Florida
Statutes. This statute now represents the exclusive means by which an
individual may disclaim an interest in property. § 739.103, Fla. Stat. (2022)
(“[T]his chapter is the exclusive means by which a disclaimer may be made
15
under Florida law.”); see also Lee, 263 So. 3d at 827 (“The Florida legislature
has codified the requirements for disclaimer of property in chapter 739, the
Florida Uniform Disclaimer of Property Interests Act.”). Consequently,
Youngelson cannot serve as a conduit for reviving a statutorily noncompliant
disclaimer.
Accordingly, we conclude the trial court correctly determined the
waivers were insufficient to establish Schocket intended to relinquish his
homestead protection. Thus, we affirm the orders under review. 1
Affirmed.
1
We find no merit to the contention that the two-year delay in the filing of the
petition precludes a determination of homestead on the ground of laches,
and the record supports the conclusion that the affirmative defense of set-off
has been rendered moot by a post-judgment settlement agreement. We
summarily affirm the decision on the remaining affirmative defenses.
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