Estate Planning

Florida Upholds Homestead Against Legal Fees

By David M. Goldman

Chames v. Demavo, 32 Fla. L. Weekly S820 CR. Sup. Ct. December 20, 2007

An attorney owed fees from his clients under a retainer agreement attempted to enforce a lien against the homestead of the clients. The retainer agreement had expressly waived the parties? constitutional homestead protection against claims of creditors.

Asking the Court to recede from prior Florida precedent in Carter and Sherbill, the appellant argued the 1995 constitutional amendment removing "head of family" changed the purpose of the creditor protection, that the trend in other states was to permit waivers, and permitting the waiver was consistent with other precedent allowing waivers.

The Court rejected the arguments of the waiver and concluded "the waiver of the homestead exemption will become an everyday part of contract language for everything from hiring of counsel to purchasing cellular telephone services ... [which will inevitably result in whittling away this century old constitutional exemption until it becomes little more than a distant memory."

A waiver of your homestead rights in a contract is still not valid in Florida (except with regards to pre and post nuptial agreements).

Full post as published by Florida Estate Planning Lawyer Blog on March 30, 2008 (boomark / email).