Same Sex Marriages Require Protection of Homestead Rights

Even though a home may be titled in the sole name of one spouse, the Florida Constitution protects the interest of the spouse who is not on the title to remain living in the home.  This may be a new concept to those lawfully wedded couples of the same sex.  I was recently retained to obtain a divorce for a couple of the same sex.  My client was selling her home, and her estranged spouse was required to provide an affidavit that the property was not her “homestead;” that she resided elsewhere.  The same client was purchasing a new home and obtaining a purchase money mortgage.  Her estranged spouse is going to have to sign on the new mortgage, even though she is not going to be living in the new home and will not be named on the title.  The reason for both is the spousal right of Homestead protected in Article X, Section 4 of the Florida Constitution.  Florida Statutes, Section 732.401 gives rights to remain in the home after the death of the title holder for the lifetime of the surviving spouse, therefore, the right must be recognized and properly extinguished by an appropriate legal document.


Based upon over forty years of experience as a real estate attorney in Fort Lauderdale, here are my suggestions regarding purchases, sales, and refinancing homes by same sex spouses:

  • Use a lawyer!
  • Be aware that your spouse will have a legal interest in any home in which they live with you, even though they are not named on the title.
  • Be aware that your spouse will have a legal interest in any home in which they live with you, even though you owned the home before you got married.
  • Consider what will happen to the home if one of the spouses dies or wants to sell.


Have your attorney prepare pre-nuptial or post-nuptial agreement between the spouses addressing the issues mentioned above and any other special matters. If you have questions or concerns about real estate and same sex spousal rights in the Fort Lauderdale, Broward County, Florida areacall Kim Douglas Sherman, Esquire, at (954) 489-9500 Please look at our qualifications set forth on our website.