MOISES RANGEL

v.

AMBER RANGEL

HARRIS, J.

Moises Rangel appeals the trial court’s order granting Amber Rangel’s motion for summary judgment. The order granting summary judgment invalidated a deed conveying title to real property from Moises’ father, Jesus Rangel (Amber’s husband), to Moises. Moises argues in this appeal that the existence of a premarital agreement creates genuine issues of material fact, precluding summary judgment. We agree that the court erred in granting summary judgment without considering the premarital agreement and reverse.

Jesus and Amber married in 1998. Prior to their marriage, they entered into a premarital agreement. The agreement stated, in relevant part:

1. That Jesus B. Rangel and [Amber] shall remain independent of each other insofar as each other’s enjoyment and disposal of real, personal or intangible property whether owned by them before their marriage or acquired any time thereafter and the each shall retain the right to manage their affairs as they see fit.

2. That [Amber] disclaims and releases all rights or claims, whether actual, inchoate or contingent, in the assets, property of marital estate of Jesus B. Rangel as he might have had or may eventually acquire by reason of being the husband of [Amber].

In October 2016, by quitclaim deed, Jesus transferred certain real property to his son, Moises. The following year, Amber filed for divorce from Jesus and filed a Verified Amended Complaint against Moises seeking to vacate or rescind the deed because she never joined in the conveyance. In his answer, Moises raised the premarital agreement as one of his affirmative defenses, arguing that Amber was bound by the agreement, pursuant to 2 which, the property, originally owned solely by Jesus, never became joint homestead or marital property and thus, Amber’s joinder was not required.

Amber subsequently filed a motion for summary judgment. In his response, Moises attached a copy of the premarital agreement as well as the deed. He also attached Amber’s answers to an interrogatory wherein she admitted to an existing premarital agreement.

Following a hearing, the court granted Amber’s motion for summary judgment, concluding that the property was homestead and, because the parties were married and Amber did not join in the transfer, the deed was void ab initio. The court specifically noted that it did not consider the enforceability of the premarital agreement when ruling on Amber’s motion for summary judgment.

Moises argues that the court erred in finding the deed void based upon the property being homestead without examining the premarital agreement that included the waiver provision. We agree. A waiver of all rights to homestead through a premarital agreement is valid under Florida law. See § 732.702(1), Fla. Stat. (1998); City Nat. Bank of Florida v. Tescher, 578 So. 2d 701, 703 (Fla. 1991). A spouse’s premarital waiver of “all rights” in the homestead would be the legal equivalent of her predeceasing the other spouse. Tescher, 578 So. 2d at 701. If the premarital agreement was 3 otherwise valid, it follows then that Amber’s joinder on a conveyance of homestead property by Jesus would not have been required to pass title. Id.; see also James v. James, 843 So. 2d 304, 305 (Fla. 5th DCA 2003) (upholding trial court’s summary judgment that invalidated quitclaim deed due to decedent’s wife failure to join, but suggesting that, had the premarital agreement, which waived all rights to homestead property, been presented to trial court at summary judgment hearing, material issues of fact would have remained and summary judgment would have been improper).

The premarital agreement in this case is in conflict with Amber’s argument that the home is marital property and that her joinder was required.

Thus, the court erred in not considering the premarital agreement when it granted summary judgment in favor of Amber. We reverse the judgment below and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

TRAVER, J., concurs.

NARDELLA, J., concurs and concurs specially, with opinion. 4 5D20-2366 NARDELLA, J., concurring specially.

Since 1885, Florida’s Constitution has protected spouses like Amber Rangel by requiring that she join in any mortgage, sale or gift of homestead property. See Donna Litman Seiden, There’s No Place Like Home(Stead) in Florida--Should It Stay That Way?, 18 Nova L. Rev. 801, 829 (1994).

Florida’s homestead protection policies are unique, and the trial court was right to recognize the general rule in Florida that an owner may not alienate the family homestead without the spouse’s joinder. While it is well established that one spouse can waive by premarital agreement the restraint against devise, one of two protections afforded by Florida’s Constitution in Article X, Section 4(c), Florida’s decisional law has yet to squarely address whether a spouse, by premarital agreement, can also waive the second homestead protection found in section 4(c): the restraint on lifetime alienation without the joinder of the owner’s spouse. See City Nat’l Bank of Fla. v. Tescher, 578 So. 2d 701, 703 (Fla. 1991) (finding valid a spouse’s waiver of the restriction on devise); see also Hartwell v. Blasingame, 564 So. 2d 543, 545 (Fla. 2d DCA 1990) (“[W]e see no reason for the state to prohibit [the surviving spouse] from validly waiving her homestead rights at the inception of the marital relationship which invoked those rights”), approved, 584 So. 2d 6 (Fla. 1991). 5 Like the restraint on devise, the restraint on lifetime alienation concerns a purely intra-family matter and, therefore, both should be capable of waiver, if made knowingly, intelligently, and voluntarily. Although its reasoning was dicta, this Court already noted as much in James v. James, 843 So. 2d 304, 307 (Fla. 5th DCA 2003), wherein this Court observed that, had the record included a valid premarital agreement, then a waiving spouse’s joinder would not have been required to pass title on homestead property.

Like the Court in James reasoned, I agree that allowing waiver of the restraint on devise of the homestead is consistent with allowing a spouse to waive the restraint on lifetime alienation. And if the restraint on lifetime alienation can be waived by a valid premarital agreement, then the trial court erred by not considering a premarital agreement submitted as summary judgment evidence. 6