Waiver Of Homestead Protections

Can you waive your homestead protection? The issued was recently addressed by the Florida Supreme Court in the case of Chames v. DeMayo. The Court pointed out that Florida’s Constitution expressly allows people to give up their homestead protection when they voluntarily pledge their homestead to secure a debt by mortgage deed. The Supreme Court in previous cases affirmed the right of a spouse to waive marital homestead rights before or during marriage. The present case addressed the situation where a debtor entered into a written contract with a creditor (in this case, a law firm) which contract waived the debtor’s homestead protection in the event the creditor took legal action to collect the debt. While affirming the narrow exceptions to homestead waiver stated above, the Supreme Court said that the homestead protection cannot be waived by contract with a creditor to enforce an unsecured debt. The Court overturned a contrary decision by one of Florida's district appellate courts.