Florida is one of only a few states that provides homestead protection to a person and their family in their primary homestead property located within the state. This protection actually arises from within the Florida Constitution both under Article X Section 4 and Article VII. While I can write a book (and books have been written) just on the issue of homestead, I’d like to focus for this short article on Article X, section 4(a), which provides creditor protections for homestead property with few exceptions.

One of these few exceptions is obligations contracted for the purchase of a home. A mortgage falls within this exception category to the homestead protections. In addition, homestead protections on a property exist not only for a title holder to property but also to their spouse and minor children. It is for this reason that a spouse is asked to join in the signing of the mortgage (not the Note) as it is an instrument or contract that effects homestead rights in property. If a lender needs to foreclose on a homestead property and a spouse was not joined in the mortgage (instrument used to foreclose) then the lender has a hurdle to overcome regarding the spouses homestead protection in that property since he/she did not sign the mortgage. It is worth noting that this hurdle is almost always overcome through other well defined areas of law.

You may now be asking: well what about the fact that this is not going to be the homestead property of the purchaser? While certain lenders will excuse a spouse from signing in this instance, most will require the signature since a property that is not homestead today may become homestead tomorrow. It is important to note that the spouse that is signing is not gaining title to the property nor is that spouse taking on any obligations regarding the property, they are acknowledging that a mortgage is being placed on a property that may have a homestead interest for them.