The Florida legislature thankfully has made it more difficult for a spouse to “accidentally” waive their homestead rights through vaguely worded or boilerplate deeds. Typically, constitutionally protected homestead rights only are waived in antenuptial agreements. However, those rights technically could be waived in any valid written contract, including a deed. Because prior cases had held that signing a deed with broader language than you knew could constitute a waiver, new statute F.S. 732.7025 now requires the following language to appear in a deed if it is to constitute a waiver of homestead: “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.” This is a welcome change.

Ch. 2018-35 amended several provisions of the trust code. Notably, the legislature clarified that the intent of the trustmaker is paramount and is to be followed over the interests of the beneficiaries. Although this is intended to guide courts in cases where there is a conflict between the trustmaker’s intent and the beneficiary’s wishes, we will wait to see how it is interpreted before commenting.

Ch. 2018-35 also appears to finally authorize the creation of a special needs trust within a revocable living trust. This would be welcome relief from having to “pour back” trust assets through a will if there happens to be a special needs beneficiary. Again, we hope this is the plain meaning and intent of the statute. The changes also broaden Florida’s “decanting” statute which permits a trustee to essentially rewrite an irrevocable trust by pouring the trust assets into a new trust, strengthen beneficiaries’ rights to receive annual trust accountings, and permits electronic posting of those trust accountings to constitute service on a beneficiary.

So, lots of action with respect to trusts in the 2018 legislature. Nothing earth shaking, but some welcome fine tuning. Let us know if you have any specific questions about any of these particular changes.

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