The non-citizen spouse problem and the QDOT trust

U.S. citizens can leave an unlimited amount to a citizen spouse free of federal estate tax under the unlimited marital deduction. That deduction does not apply when the surviving spouse is not a U.S. citizen, even if that spouse is a lawful permanent resident living in Florida. Congress was concerned a non-citizen spouse could inherit and then leave the country with assets that were never taxed.

The standard solution is a Qualified Domestic Trust, or QDOT. Property passing into a properly structured QDOT can defer estate tax until distributions are made from the trust, preserving the marital benefit for a non-citizen surviving spouse. QDOTs have strict requirements, including a U.S. trustee and rules on principal distributions, so they must be drafted deliberately under Florida’s trust code (Chapter 736, Florida Statutes). If your spouse later naturalizes, the analysis changes again. This is precisely the kind of moving target that requires your estate plan and your immigration timeline to be coordinated.

Estate tax exposure for non-resident, non-citizen owners

If you are a non-resident alien for tax purposes but own U.S.-situs assets, such as Florida real estate or shares in a U.S. company, your estate can face federal estate tax on those assets with a far smaller exemption than U.S. citizens and residents receive. A foreign investor who buys a Miami condo or capitalizes a U.S. LLC may be quietly accumulating estate tax exposure with no plan to address it. Structuring ownership correctly, sometimes through entities, is a planning decision that should be made before death, not discovered after.

Immigration status, beneficiaries, and inheritance

An inheritance generally does not jeopardize a beneficiary’s immigration status, and non-citizens can inherit Florida property. But the details matter. Distributing assets to a beneficiary who is mid-process on a green card or naturalization case can raise questions, and naming the wrong fiduciary or beneficiary structure can complicate both the estate and the immigration file. If your beneficiaries are pursuing status through marriage, this is where you want competent immigration counsel involved; we routinely refer clients pursuing marriage-based green cards to a dedicated immigration firm, because that side of the work is not something an estate firm should handle.

Guardianship for the children of immigrants

Under Florida law you can nominate a guardian for your minor children in your will. For immigrant families this is critical: if both parents are abroad, detained, or deceased, and no guardian is designated, a Florida court decides who raises your children, potentially someone you would never have chosen. Your will must meet Florida’s execution formalities under section 732.502, Florida Statutes, signed and witnessed correctly, or the nomination may fail. If your intended guardian lives outside the United States, plan for that contingency explicitly.

Powers of attorney when you travel abroad

Immigration matters often require travel: consular interviews, biometrics, or extended stays in your home country. If you are out of the country and a business deal closes, a tax deadline hits, or you are incapacitated, a durable power of attorney lets a trusted person act on your behalf in Florida. Pair it with a health care surrogate. Without these documents, your family may need a court-supervised guardianship to do what a one-page form could have authorized.

Coordinating the two plans

Florida’s homestead protections, our trust code, and your will all interact with your citizenship status and your pending immigration case. We handle the estate side. For the immigration side, including green-card and naturalization matters, we recommend working with experienced immigration counsel, and for our many Russian-speaking clients in South Florida we suggest a Russian-speaking immigration attorney who can manage the case in your language. Newcomers to Florida need both. Build them together, and revisit the plan each time your status, or your spouse’s, changes.

Who will raise my children if something happens to us?

This is the single biggest worry for young Miami parents, and Florida gives you a clear tool to address it. In your will, executed under Florida Statute 732.502 (signed by you and two witnesses), you can nominate a guardian for your minor children. If you do not name one, a Florida court decides who raises your kids, often during an emotional dispute among relatives. Naming a guardian, plus a backup, keeps that decision in your hands instead of a Miami-Dade judge’s.

Do I really need more than a will?

For most young families, a will alone forces assets through probate. A revocable living trust under Florida Chapter 736 lets you hold assets for your children’s benefit and avoid probate, while controlling when they actually receive money. Without a trust, a child who inherits outright at 18 could receive a lump sum the day they become an adult. A trust lets you stagger distributions, for college, a first home, or later milestones.

What happens to our Miami home?

Florida’s homestead protection (Article X, Section 4 of the Florida Constitution) shields your primary residence from most creditors, a meaningful benefit in a high-value market like Miami-Dade. But homestead also carries restrictions: if you have a spouse or minor children, you generally cannot freely devise the homestead to anyone else. A Lady Bird (enhanced life estate) deed can pass your home automatically to your chosen beneficiaries while keeping homestead and control during your lifetime.

What if we are alive but unable to make decisions?

Estate planning is not only about death. A durable power of attorney under Florida Chapter 709 lets a trusted person manage finances if you are incapacitated, and a designation of health care surrogate handles medical decisions. For young families, this matters: a car accident or sudden illness could otherwise leave a spouse unable to access accounts or make medical choices without a court guardianship proceeding.

Will my family owe estate taxes?

Good news for Miami families: Florida has no state estate tax and no inheritance tax. Only very large estates approach the separate federal estate tax threshold, so the vast majority of young families plan for guardianship, asset protection, and probate avoidance, not taxes.

How do we keep life insurance from getting tangled up?

Many young Miami parents carry term life insurance, the right move. Make sure your beneficiary designations are coordinated with your plan. Naming a minor child directly can trigger court oversight; naming your trust instead keeps the proceeds managed for your children under terms you set.

A note for Miami parents

A solid plan for a young family usually combines a will naming guardians, a revocable trust, a durable power of attorney, a health care surrogate, and coordinated beneficiary designations, all built around Florida’s homestead rules. Because these documents must meet specific Florida execution requirements to be valid, it is worth speaking with a licensed Florida estate planning attorney who can tailor a plan to your family and your Miami home.

I’ve sat across the desk from too many widows and adult children holding a beautifully bound trust that their loved one signed years ago — and never funded. The home was still titled in the deceased’s name alone. The brokerage account still listed the individual. The result was a Miami-Dade probate that the trust was supposed to prevent. This guide walks through how to fund a Florida revocable trust correctly, with the wrinkles that matter most to retirees and seasonal residents.

What “Funding” a Revocable Trust Actually Requires

Under the Florida Trust Code, creating a valid trust and funding a trust are two different events. Section 736.0402, Florida Statutes, sets out what it takes to create a trust — a settlor with capacity and intent, a definite beneficiary, a trustee with duties, and so on. For revocable trusts signed by a Florida domiciliary, section 736.0403(2)(b) adds that the testamentary aspects must be executed with the same formalities as a Florida will: signed by the settlor in the presence of two attesting witnesses, who in turn sign in the presence of the settlor and each other.

But none of those creation rules move a single asset. Funding is a separate, ongoing act of ownership transfer. You change a deed. You re-register a bank account. You file a stock transfer. Each asset has its own mechanism, and skipping any one of them leaves that asset exposed to probate.

Think of the trust as an empty box. Signing it builds the box. Funding it is the act of putting your house, your accounts, and your investments inside.

Re-Titling Florida Real Estate Into Your Trust

For most Miami retirees, the home is the single most important asset to transfer — and the one most often handled wrong. Real property is funded by recording a new deed that conveys the property from you, individually, to yourself as trustee of your trust. Typically this is done with a warranty deed or, more commonly in estate planning, a quitclaim or special warranty deed prepared and recorded in the county where the property sits (Miami-Dade for most of our clients).

A few things deserve real attention here:

• Homestead protection survives the transfer — if done right. Florida homestead carries powerful creditor protection and a property-tax exemption. A properly drafted revocable trust can hold homestead and preserve both, but the deed and trust language have to reserve the beneficiary’s right to use and occupy the property. Sloppy drafting can jeopardize the exemption.
• The Florida Land Trust Act is a different animal. Section 689.071, Florida Statutes, governs land trusts, which separate legal title from beneficial ownership and are sometimes used for privacy. That is not the same thing as a standard revocable living trust, and the two should not be confused when titling your home.
• Watch your mortgage and title insurance. Transfers to your own revocable trust generally don’t trigger a due-on-sale clause under federal law, but you should confirm coverage continues and notify your insurer so your homeowner’s policy still names the correct insured.
• Out-of-state property counts too. Snowbirds frequently own a place up north. If that property isn’t transferred into a trust, your family may face a separate ancillary probate in that state. Funding the trust with each property avoids that.

Do not “DIY” a homestead deed off a template. Recording the wrong instrument can cloud title, blow the tax exemption, or even create an unintended completed gift. This is the part of funding where a Florida attorney earns their fee.

Funding Bank and Brokerage Accounts

Liquid accounts are funded by changing the registration so the account is held in the name of the trust. Walk into your bank or call your brokerage and ask to re-title the account as, for example, “Jane Q. Resident, Trustee of the Jane Q. Resident Revocable Trust dated January 5, 2026.” The institution will usually want a copy of the trust or a certificate of trust (a short summary authorized under Florida law that proves the trust’s existence without exposing all its terms).

You generally do not need to fund:

1. Retirement accounts — IRAs, 401(k)s, and similar plans should almost never be re-titled into a revocable trust during life, because changing ownership can trigger immediate income tax. These pass by beneficiary designation instead.
2. Accounts you’d rather pass by beneficiary designation — payable-on-death (POD) and transfer-on-death (TOD) registrations also avoid probate, and can complement a trust. Coordinate them; don’t let them quietly contradict your plan.

The mistake I see most often is a checking account left in the individual’s sole name “because it’s just for paying bills.” If that account holds meaningful funds at death and has no POD beneficiary, it can be enough to require probate all by itself.

Business Interests, Investments, and Personal Property

Closely held business interests — LLC membership units, shares in a family corporation, partnership interests — are funded by assigning your ownership to the trust, often with an accompanying amendment to the operating agreement or a recorded assignment. These require care, because operating agreements sometimes restrict transfers, and the assignment language has to track what the entity documents permit.

For stocks and bonds held in certificate form, you’ll execute a stock power or work with the transfer agent. Tangible personal property — jewelry, art, furniture, a boat — is typically swept in through a general assignment of personal property to the trust, a short signed document that transfers items without a formal title. Titled vehicles are a judgment call in Florida; many clients leave cars out and rely on the streamlined transfer Florida offers for a modest number of vehicles.

The Pour-Over Will: Your Safety Net, Not Your Plan

Even diligent people forget an asset. The pour-over will is the backstop: it directs anything left in your individual name at death to “pour over” into your trust. Useful — but understand what it costs. Assets that pass through a pour-over will still go through probate first, then into the trust. The safety net catches you; it doesn’t keep you off the high wire. The goal of funding is to make the pour-over will do as little work as possible.

A Practical Funding Checklist for Florida Retirees and Snowbirds

• Record a proper deed transferring your Florida homestead to the trust, with homestead-preserving language.
• Handle any out-of-state real estate to avoid ancillary probate.
• Re-title bank, credit union, and non-retirement brokerage accounts.
• Review — do not blindly change — IRA and 401(k) beneficiary designations.
• Assign LLC and business interests, consistent with the operating agreement.
• Sign a general assignment of personal property.
• Keep a written schedule of trust assets and update it when you buy or sell.

If your planning involves more specialized vehicles — for example a to protect a disabled beneficiary’s public benefits — funding rules become even more exacting, and the wrong transfer can disqualify the very person you’re trying to help. The same precision applies across the broader family of our affiliated attorneys handle. For Florida-specific guidance on the documents that surround your trust, see our overview of , and review how a trust coordinates with your will and what happens in Florida probate when funding falls short.

Why Snowbirds Especially Cannot Skip This Step

Seasonal residents tend to own property in two states, bank in two states, and split the year. That multiplies every funding decision. A trust funded only with your northern assets does nothing for your Florida condo; a trust funded only in Florida leaves the lake house exposed. Domicile, homestead, and which state’s law governs become live questions. If you’ve recently made Florida your legal home, your funding plan should reflect that — and your older out-of-state documents may need a fresh look.

Funding is not glamorous. It’s deeds and registration forms and certificates of trust. But it is the entire point. Get it right, and your family inherits with a phone call and a death certificate. Get it wrong, and the trust you paid for sits on a shelf while a judge sorts out the estate. If you’d like a Miami attorney to review whether your trust is actually funded — or to set one up correctly the first time — reach out to our office.

Frequently Asked Questions

What happens if I sign a revocable trust but never fund it in Florida?

The trust controls only the assets actually transferred into it. Anything left in your individual name at death generally passes through probate, even with a valid trust on file. An unfunded or partially funded trust is the most common reason a Florida family ends up in probate despite having an estate plan; the pour-over will catches stray assets but only after they go through probate first.

Can I put my Florida homestead in a revocable trust without losing the tax exemption and creditor protection?

Yes, if it’s done correctly. A properly drafted revocable trust can hold Florida homestead while preserving both the property-tax exemption and constitutional creditor protection, but the deed and trust must reserve your right to use and occupy the property. Faulty drafting or the wrong deed can jeopardize those benefits, so homestead transfers should not be handled with generic templates.

Should I transfer my IRA or 401(k) into my revocable trust?

Generally no. Re-titling a retirement account into a revocable trust during your lifetime can be treated as a taxable distribution, triggering immediate income tax. These accounts normally pass through beneficiary designations instead. You can sometimes name the trust as a beneficiary, but that decision has significant tax and required-distribution consequences and should be reviewed with an attorney.

I'm a snowbird with property in another state. Does funding my Florida trust cover it?

Only if you actually transfer that out-of-state property into the trust. Real estate is governed by the law of the state where it sits, so a home up north left in your individual name can require a separate ancillary probate in that state. Funding the trust with each parcel of real estate, in every state, is what avoids multiple probate proceedings.

What is a certificate of trust and why do banks ask for one?

A certificate of trust is a short summary, recognized under Florida law, that confirms a trust exists and identifies the trustee’s authority without disclosing all the private terms or the beneficiaries. Banks and brokerages use it to verify your authority to re-title accounts into the trust while keeping the full trust document confidential.

I practice estate planning in Miami, and a large share of my clients are retirees and seasonal residents — snowbirds who winter in South Florida and summer up North. They are often surprised to learn that a will, by itself, does not avoid probate. A will is a set of instructions to the probate court. Avoiding probate means staying out of that courthouse altogether.

What probate actually is in Florida

Florida probate is governed by Chapters 731 through 735 of the Florida Statutes and the Florida Probate Rules. It is the supervised process of validating a will, appointing a personal representative, identifying and gathering assets, paying creditors and taxes, and finally distributing what remains to the beneficiaries. There are two main flavors:

• Formal administration — the standard process for estates over $75,000 (excluding exempt property) or when complications exist. It typically runs six months to a year, sometimes longer.
• Summary administration — a streamlined option under Florida Statutes § 735.201 when the probatable estate is valued at $75,000 or less, or the decedent has been dead for more than two years.

Probate is not inherently a disaster. But it is public, it takes time, it requires a Florida attorney in nearly all formal cases, and it costs money — statutory attorney’s fees alone, under Florida Statutes § 733.6171, run on a sliding scale (for example, a presumed reasonable fee of 3% on the first $1 million of estate value). For an out-of-state family grieving a parent, the logistics of a Miami probate can be genuinely burdensome. Avoiding it is usually worth the upfront planning.

Why snowbirds face extra probate risk

Seasonal residents create a special problem: assets in two states. If you keep a condo in Miami-Dade and a house in New York or New Jersey, dying with both titled in your sole name can trigger probate in each state — the main proceeding where you are domiciled, plus an ancillary probate for the out-of-state real estate. Two courts, two sets of fees, two timelines. Consolidating title into a single revocable trust is the cleanest way to collapse that into nothing. If your primary planning was done up North, it is worth having both your Florida and home-state documents reviewed together; our colleagues handle the New York side through Morgan Legal’s , and we coordinate the Florida pieces here.

The core probate-avoidance tools in Florida

1. The revocable living trust

The revocable living trust is the workhorse of probate avoidance. You create the trust, name yourself as trustee while you are alive, and then retitle your assets into the trust’s name — your home, brokerage accounts, business interests. Because the trust (not you personally) owns the assets, there is nothing in your sole name for probate to capture. When you die, your named successor trustee distributes everything privately, on your terms, without court involvement.

The most common mistake I see is the trust that was signed but never funded. An unfunded trust is an empty box. If you sign a trust and leave your condo titled in your individual name, that condo still goes through probate. Funding — recording new deeds, changing account registrations — is where the protection actually happens, and it is the step do-it-yourself plans almost always botch.

A revocable trust offers more than probate avoidance. Because it does not become irrevocable until death, it gives you a clean mechanism for incapacity: if you can no longer manage your affairs, your successor trustee steps in without a court guardianship. That is a major reason elder-law attorneys lean on trusts; Morgan Legal’s uses the same approach for aging clients who want to keep decisions inside the family.

2. Beneficiary and pay-on-death designations

Some of the most powerful probate-avoidance tools cost nothing and take ten minutes. Assets with a valid beneficiary designation pass directly to that person by operation of law, bypassing both the will and probate:

• Retirement accounts — IRAs, 401(k)s, 403(b)s — pass to the named beneficiary.
• Life insurance proceeds go straight to the listed beneficiary.
• Bank accounts can be set up as payable-on-death (POD) under Florida Statutes § 655.82.
• Brokerage and investment accounts can use a transfer-on-death (TOD) registration under Florida’s Uniform Transfer-on-Death Security Registration Act, Florida Statutes §§ 711.50–711.512.

The catch: these designations override your will and your trust. I have reviewed estates where a meticulously drafted trust was undone by a 401(k) that still named an ex-spouse from 1998. Review every designation, name contingent beneficiaries, and keep them synced with your overall plan.

3. Joint ownership with right of survivorship

Property held jointly with right of survivorship passes automatically to the surviving owner. For married couples, Florida recognizes tenancy by the entirety, which carries both survivorship and strong creditor protection. When one spouse dies, the survivor owns the whole asset outright — no probate.

Joint ownership is simple, but it is a blunt instrument. Adding an adult child as a joint owner to “avoid probate” can expose the asset to that child’s creditors or divorce, can trigger gift-tax reporting, and can sacrifice a valuable step-up in cost basis. Use it deliberately, not as a shortcut for everything.

4. The Florida lady bird deed

The enhanced life estate deed, known as a lady bird deed, is a Florida favorite. It lets you keep full control of your real estate during your lifetime — you can sell it, mortgage it, or change your mind — while naming a remainder beneficiary who automatically takes title at your death, outside probate. Unlike a plain life estate, the lady bird deed does not give the remainder beneficiary any present rights, so you are not locked in.

For a snowbird whose main Florida asset is a single condo or home, a properly drafted lady bird deed can be a clean, low-cost way to skip ancillary probate on that property. It also preserves Florida homestead protections and the homestead property-tax benefits. Just be careful: homestead has its own constitutional descent-and-devise rules, and a deed that conflicts with them can be invalid. This is not a form to download. See our overview of Florida probate for how these pieces interact.

Florida homestead: the wildcard

Your Florida homestead is treated differently from every other asset. Article X, Section 4 of the Florida Constitution and Florida Statutes § 732.401 restrict how you can leave a homestead if you are survived by a spouse or minor child — in some cases the property passes by these constitutional rules regardless of what your will says. Homestead generally avoids forced sale by creditors and often passes outside the probate estate to protected heirs, but it can still require a court order determining homestead status.

The planning takeaway: homestead is both a powerful shield and a trap for amateurs. A lady bird deed or a carefully structured trust provision can move it cleanly, but only if it respects the constitutional descent rules. This is exactly where generic, out-of-state documents fail Florida families.

A practical sequence to keep your estate out of probate

1. Inventory how each asset is titled. List every account, deed, and policy, and write down who owns it and whether it has a beneficiary. Most probate exposure hides in this list.
2. Decide on a structure. For straightforward estates, beneficiary designations plus a lady bird deed may be enough. For multi-state, blended-family, or larger estates, a funded revocable trust is usually the better backbone.
3. Execute the documents correctly. Florida has strict execution formalities — a will needs two witnesses under Florida Statutes § 732.502; deeds must be properly drafted and recorded.
4. Fund the trust and update designations. Retitle real estate, move accounts, and confirm every POD/TOD and beneficiary form. This is the step that actually avoids probate.
5. Add a pour-over will and powers of attorney. A pour-over will catches any stray asset, and durable powers of attorney plus a health-care directive cover incapacity.
6. Review every few years — and after any move, marriage, divorce, death, or major purchase.

Common mistakes that send Florida estates to probate anyway

• The unfunded trust. Signed, then forgotten. The assets never moved in.
• Relying on a will to avoid probate. A will is a probate document, not a probate-avoidance tool.
• Stale beneficiary forms. Ex-spouses, predeceased relatives, no contingent beneficiary.
• Ignoring the out-of-state property. The Northern house quietly triggers an ancillary probate up there.
• DIY homestead deeds that violate the constitutional descent rules and get rejected.

For more on the document side, see our guide to wills and related documents, and reach out through our contact page when you are ready to map your own plan.

When you should bring in a Florida attorney

If you own real estate, hold assets in more than one state, have a blended family, own a business, or simply want certainty that your plan will work, this is not a place to improvise. The tools above are genuinely effective — but only when they are matched to your situation and executed under Florida law. For seasonal residents in particular, coordinating Florida and home-state planning at the same time is what prevents the double-probate surprise. Our Florida office handles the local work, and we coordinate with counsel in New York and other states so your whole plan moves as one.

Done right, probate avoidance is quiet. Your family never sees the inside of a Miami courtroom, your affairs stay private, and the assets you spent a lifetime building reach the people you intended — on schedule, and on your terms.

Frequently Asked Questions

Does a will avoid probate in Florida?

No. A will does not avoid probate; it is a set of instructions to the probate court. Assets titled in your sole name and governed only by a will must still pass through Florida probate. To avoid probate, assets need to transfer by another mechanism, such as a funded revocable trust, a beneficiary or pay-on-death designation, joint ownership with survivorship, or a lady bird deed.

What is the fastest way to avoid probate on my Florida home?

For a single property, a properly drafted Florida lady bird (enhanced life estate) deed is often the simplest option. It lets you keep full control during your lifetime, including the right to sell or mortgage, while naming a remainder beneficiary who takes title automatically at your death, outside probate. It must respect Florida’s homestead descent rules, so have an attorney prepare it.

Do snowbirds with property in two states face probate twice?

They can. If you die owning real estate in your sole name in both Florida and another state, your family may face a main probate where you were domiciled plus an ancillary probate for the out-of-state property. Holding both properties in a single revocable living trust generally eliminates probate in both states.

How much does probate cost in Florida?

Costs vary, but statutory attorney’s fees under Florida Statutes section 733.6171 follow a sliding scale presumed reasonable, such as roughly 3% on the first $1 million of estate value, plus court costs and the personal representative’s fees. Formal administration also typically takes six months to a year or more, which is part of why many families plan to avoid it.

Is a revocable living trust enough to avoid probate?

Only if it is funded. Signing a trust does nothing until you retitle your assets into it and update your beneficiary designations. An unfunded trust leaves assets in your sole name, and those still go through probate. Funding the trust correctly is the step that actually keeps your estate out of court.

I’ve sat across the table from a lot of remarried retirees in Miami—often snowbirds who married later in life, each bringing adult children, a paid-off condo, and an IRA. They almost always assume their will controls everything. It doesn’t. Florida law gives a surviving spouse rights that survive a will, and unless you address them deliberately, your blended-family plan can come apart in probate.

Why second marriages need a different estate plan

A first marriage usually has aligned incentives: the same kids, the same house, a shared lifetime of accumulation. A second or third marriage scrambles that. You may want your spouse to live comfortably for the rest of their life, but you also want your assets to land with your children, not your spouse’s children or a future spouse of theirs.

Left alone, Florida’s default rules don’t honor that nuance. They treat the surviving spouse generously, sometimes at the direct expense of the kids you intended to provide for. The fix is intentional coordination across four moving parts:

• The prenuptial (or postnuptial) agreement, which defines what each spouse waives or keeps.
• The will and revocable living trust, which distribute what’s left.
• Beneficiary designations on retirement accounts, life insurance, and annuities—which pass outside the will entirely.
• Titling of real estate and accounts, especially anything held jointly or as tenants by the entirety.

Change one without the others and you create a contradiction. A prenup that waives all marital rights is meaningless if you then name your spouse as the IRA beneficiary and title the condo jointly with right of survivorship. The non-probate transfers win.

The Florida elective share: the rule that surprises everyone

Florida’s elective share is the single most important concept for remarrying couples to understand. Under Florida Statutes Chapter 732 (specifically §732.201 and following), a surviving spouse is entitled to elect to take 30% of the deceased spouse’s “elective estate”—even if the will or trust leaves them nothing or very little.

The “elective estate” is broad. It isn’t just the probate estate. It reaches into revocable trusts, certain jointly held property, some life insurance, retirement accounts, property over which the decedent held a general power of appointment, and even some assets transferred within a year of death. The Legislature built it precisely to stop someone from disinheriting a spouse by shoving everything into a trust or a payable-on-death account.

For a blended family, here’s the practical danger. Suppose you intend to leave your $1.2 million estate to your three adult children and provide for your new spouse through a separate life insurance policy. If your spouse hasn’t validly waived the elective share, they can ignore your will and claim 30% of that elective estate. Your children’s inheritance shrinks accordingly, and the plan you thought you’d built collapses.

This is why a prenuptial agreement that includes a clear, knowing waiver of the elective share is the backbone of second-marriage planning in Florida. For couples weighing how lifetime care costs interact with these rights, our colleagues handling see the same tension play out around long-term care and spousal protections.

Homestead: the protection that can trap your heirs

Florida’s homestead rules deserve their own conversation because they trip up nearly every remarried couple I meet. Under the Florida Constitution (Article X, §4) and §732.401, your homestead—your primary residence—gets special treatment at death that overrides your will.

If you are married and have minor children, you generally cannot devise your homestead at all. If you are married with no minor children, you can leave it only to your spouse outright. If you try to leave the home to your kids instead, the law steps in: under §732.401, your surviving spouse takes a life estate in the homestead, with the remainder to your descendants—or, by election, the spouse can take a 50% tenant-in-common interest.

Picture the Miami snowbird who owns a condo in Brickell and wants the children from his first marriage to inherit it. He remarries. He never updates anything. He dies. His new wife now has a life estate—she can live there for the rest of her life, and she’s responsible for taxes, insurance, and upkeep, while the kids hold a remainder they can’t touch and can’t sell. Tensions over who pays the special assessment on a 40-year-recertification can turn a family into adversaries fast.

A prenuptial agreement can include a homestead waiver—but Florida courts require it to be explicit and properly executed. A generic “I waive all rights in your property” clause has been held insufficient to waive homestead rights in some cases. The waiver has to be clear and, ideally, executed with the formalities of a deed. Don’t rely on boilerplate here.

What a Florida prenuptial agreement can and can’t do

Florida adopted a version of the Uniform Premarital Agreement Act, codified at §61.079. Within it, couples have wide latitude. A valid Florida prenup can address:

1. Waiver of the elective share under §732.702, which specifically allows spouses to waive rights to elective share, homestead, intestate share, family allowance, and to serve as personal representative.
2. Property characterization—keeping each spouse’s premarital assets, businesses, and inheritances separate.
3. Disposition of property at death, including agreements to leave (or not leave) certain assets.
4. Spousal support in the event of divorce, within limits.

What a prenup generally can’t do: it can’t waive child support, can’t bind a court on the best interests of children, and can’t be enforced if it was signed under duress, without fair financial disclosure, or with terms so lopsided they’re unconscionable. Full, honest disclosure of each party’s assets and income is the price of enforceability. Hiding the second brokerage account to make your number look smaller is how a prenup gets thrown out.

Timing matters more than people think

A prenup sprung on a fiancé the week before the wedding invites a duress challenge later. Give the document room to breathe—weeks, not days—and let each party have independent counsel. Two lawyers cost more upfront and save enormous grief at the second death. For Florida residents coordinating these documents locally, our drafts the prenup and the estate plan in tandem so they don’t contradict each other.

Coordinating the prenup with wills, trusts, and beneficiaries

Here’s where most plans break. The prenup gets signed, the couple marries, and the estate plan never gets updated to reflect it. The prenup says the surviving spouse waives all rights; the old will, drafted before the marriage, still names an ex-spouse or makes no provision at all. Now you have litigation.

Proper coordination looks like this:

• Revocable living trust as the spine. A trust avoids probate, keeps your blended-family arrangements private, and—critically—lets you provide for your spouse for life while preserving the remainder for your children.
• A marital trust or QTIP arrangement. A Qualified Terminable Interest Property trust pays income to your surviving spouse for life, then passes the principal to your chosen beneficiaries—your kids. The spouse is provided for; the children are protected; nobody gets disinherited by a later remarriage. This is the workhorse of second-marriage planning.
• Beneficiary designations that match the plan. Retirement accounts and life insurance pass by designation, not by will. If your strategy is to fund your spouse with a life policy and leave the IRA to the kids, the forms have to say exactly that. Review them every time the plan changes.
• Deliberate titling. Joint tenancy with right of survivorship and tenancy by the entirety both override your will. Decide on purpose whether the condo is jointly held or held in trust.

For couples concerned about future long-term care costs eroding what’s left for the kids, asset-protection structures like a can be layered in—though the Florida and New York rules differ, and the look-back period demands early planning, not a deathbed scramble.

Special considerations for snowbirds and dual-state couples

Many remarried retirees in Miami keep a foothold up north—a house in New York, New Jersey, or Connecticut, and a condo in Florida. That dual-state footprint adds wrinkles.

Domicile drives everything. Which state you call your legal home determines whose elective-share, homestead, and estate-tax rules apply. Florida has no state estate or inheritance tax, which is a major reason snowbirds establish domicile here. But you can’t claim Florida homestead on the condo while also claiming a residency exemption up north—pick one, and document it.

Out-of-state real estate can trigger ancillary probate. If you own the New York house in your own name and die a Florida resident, your heirs may face a second, separate probate in New York. Holding that property in a revocable trust usually avoids the headache.

Your prenup should specify governing law. A prenup signed in another state, then carried into a Florida second marriage, may or may not be enforced the same way here. Have Florida counsel review it. What waived an elective share in New York may not cleanly waive Florida homestead rights.

A simple checklist before you remarry in Florida

• Sign a prenuptial agreement with full financial disclosure and independent counsel for each party—well before the wedding.
• Include explicit waivers of the elective share, homestead, family allowance, and intestate share under §732.702 if that’s your intent.
• Rewrite your will and fund a revocable trust to match the prenup.
• Consider a QTIP or marital trust to provide for your spouse while preserving principal for your children.
• Update every beneficiary designation and confirm how each asset is titled.
• Confirm your domicile and address any out-of-state real estate.

None of this is about distrust. It’s about clarity. The most loving thing remarrying retirees can do for both their spouse and their children is remove the guesswork—so that no one is left fighting over a Brickell condo or a brokerage account while grieving. If you’re planning a second marriage, talk with an attorney who handles both the prenup and the estate plan as one project. You can review our wills and trusts services, learn about the Florida probate process, or reach out to our Miami office to start the conversation.

Frequently Asked Questions

Can a Florida prenuptial agreement waive a surviving spouse's elective share?

Yes. Under Florida Statutes §732.702, spouses can waive the elective share, homestead rights, family allowance, intestate share, and the right to serve as personal representative—provided the waiver is in writing, signed, and supported by fair and reasonable financial disclosure. Without that disclosure, a court may refuse to enforce it.

What happens to my Florida home if I leave it to my children but I'm remarried?

Florida homestead law (Article X, §4 of the Constitution and §732.401) overrides your will. If you’re married with no minor children and try to leave the homestead to your kids, your surviving spouse instead receives a life estate with the remainder to your descendants, or can elect a 50% tenant-in-common interest. A valid, explicit homestead waiver in a prenup is the way to change this result.

How does a QTIP trust help in a second marriage?

A Qualified Terminable Interest Property (QTIP) trust pays income to your surviving spouse for life, ensuring they’re provided for, then directs the remaining principal to the beneficiaries you choose—typically your children from a prior marriage. It prevents your assets from being redirected to your spouse’s heirs or a future spouse, balancing both families’ interests.

I'm a snowbird who lives part of the year in Florida. Which state's rules govern my estate?

Your legal domicile controls. The state you establish as your permanent home determines which elective-share, homestead, and estate-tax rules apply. Florida has no state estate tax, which attracts many retirees, but you must document domicile consistently and can’t claim conflicting residency exemptions in two states. Out-of-state real estate held in your own name can also trigger a separate ancillary probate.

Do both spouses need their own lawyer for a prenuptial agreement?

It’s strongly recommended. Independent counsel for each party reduces the risk that the agreement is later challenged for duress, lack of understanding, or inadequate disclosure. Combined with signing well before the wedding and exchanging complete financial information, separate representation makes a Florida prenup far more likely to be enforced at death or divorce.

I have spent years sitting across the table from families in Miami-Dade and Broward who assumed a plan drafted in New York, New Jersey, or Ohio would simply carry over when they bought a condo in Brickell or a place in Aventura. Sometimes it does. More often, something quietly breaks. Below are the mistakes I see most, why they happen, and how to keep them from derailing the plan you worked so hard to build.

Why Florida Estate Planning Is Different for Snowbirds

Florida is not just another state with its own forms. It has a distinct probate code (Chapters 731 through 735 of the Florida Statutes), unusual homestead protections written into the state constitution, and rules about who can serve as a personal representative that surprise most newcomers. If you are a seasonal resident, you also carry the added complication of two homes, two sets of advisors, and a real question about which state you actually live in for legal and tax purposes.

That overlap is where trouble starts. A plan that was perfectly valid in the state you came from can collide with Florida law in ways nobody anticipated until the second spouse passes away or a child contests something.

Mistake 1: Relying on an Out-of-State Will Without Reviewing It

A will validly executed in another state is generally honored in Florida, but “generally” is doing a lot of work in that sentence. Florida does not recognize handwritten (holographic) wills unless they were signed with the same formalities a typed will requires, and it does not recognize oral wills at all. If your old document relied on a self-proving affidavit format your prior state allowed but Florida structures differently, your personal representative may face extra steps to prove the will at the courthouse.

There is a more practical problem too. Out-of-state wills frequently name an out-of-state executor and reference institutions, accounts, or property that no longer exist. When you relocate, the document should be re-read line by line against your current life, not just stuffed in a drawer because it was “already done.”

What to check on an inherited or old will

• Whether the named personal representative still qualifies under Florida law (see Mistake 5).
• Whether the witnessing and self-proving language meets Fla. Stat. § 732.503.
• Whether specific gifts reference assets you still own.
• Whether guardianship or trust provisions still reflect your wishes years later.

Mistake 2: Misunderstanding Florida Homestead Protection

Florida’s homestead rules are some of the most powerful, and most misunderstood, in the country. The homestead exemption shields your primary residence from most creditors and caps how much its assessed value can rise each year. But homestead is also subject to constitutional restrictions on how you can leave it at death.

Under Article X, Section 4 of the Florida Constitution, if you are survived by a spouse or minor child, you cannot freely devise your homestead to whomever you please. Try to leave the house to one adult child instead of your spouse, and the devise can be invalid, with the property instead passing under a statutory formula that gives the surviving spouse a life estate or, by election, a one-half interest. Snowbirds who assume they can simply will the Miami condo to a particular child are frequently caught off guard.

Seasonal residents face an extra wrinkle: claiming the homestead exemption requires that the Florida property be your permanent residence. You cannot claim homestead in Florida and a residency-based property tax break in another state at the same time. Doing so invites a lien for back taxes, penalties, and interest under Fla. Stat. § 196.161.

Mistake 3: Assuming a Living Trust Avoids Every Problem

Revocable living trusts are excellent tools, and for many Florida snowbirds they are the centerpiece of a good plan because they can avoid probate in both states and keep your affairs private. But a trust you never funded is just a stack of paper. The single most common trust mistake I see is a beautifully drafted document with no assets actually transferred into it. The deed to the condo is still in your individual name, the brokerage account never got retitled, and the family ends up in probate anyway.

Trusts also have to be matched to your goals. If you are worried about long-term care costs or qualifying for benefits, a revocable trust does nothing to protect assets, because anything you can revoke is counted as available. That is a different planning conversation. For example, families concerned about nursing-home spend-down sometimes use an irrevocable vehicle such as a , while those with a disabled or chronically ill beneficiary and modest income may look at options like a . The right structure depends on your facts, your state of residence, and timing, which is exactly why a template downloaded online so often fails.

Mistake 4: Stale or Missing Powers of Attorney and Health Directives

Estate planning is not only about death. For older clients and snowbirds especially, the documents that govern incapacity matter just as much. Florida’s durable power of attorney statute (Fla. Stat. Chapter 709) was substantially reworked in 2011, and it is stricter than many other states. Florida no longer recognizes “springing” powers of attorney that take effect only upon incapacity, and banks here scrutinize these documents closely.

I regularly see retirees carrying a 2005 power of attorney from another state that a Miami bank simply will not honor. By then the person is often already incapacitated, and the family’s only option is an expensive guardianship proceeding, which is precisely what the document was supposed to prevent.

The incapacity documents every Florida resident should have

1. A durable power of attorney compliant with current Florida law.
2. A designation of health care surrogate under Fla. Stat. § 765.202.
3. A living will stating your wishes about life-prolonging treatment.
4. A HIPAA release so your agents can actually obtain medical information.

Mistake 5: Naming a Personal Representative Who Cannot Serve

Florida restricts who can act as your personal representative (the term Florida uses instead of “executor”). Under Fla. Stat. § 733.304, a non-resident can serve only if they are closely related to you, generally a spouse, child, parent, sibling, or other close relative, or that relative’s spouse. So if your will names a trusted friend or a niece’s husband who lives in Connecticut, that person may be legally disqualified the moment you pass away.

This trips up snowbirds constantly, because the natural instinct is to name the longtime friend or advisor back home. When that person cannot serve, the court appoints someone under the statutory priority order, which may not be who you intended. Choosing a qualified, Florida-friendly personal representative, and a backup, avoids the problem entirely.

Mistake 6: Forgetting About Beneficiary Designations and Joint Titling

Your will does not control everything you own. Retirement accounts, life insurance, annuities, and “transfer on death” or “pay on death” accounts pass by beneficiary designation, completely outside your will or trust. I have watched a carefully drafted plan get undone because an IRA still named an ex-spouse from twenty years earlier. The will said one thing; the beneficiary form said another, and the beneficiary form won.

Joint titling causes its own surprises. Adding an adult child as a joint owner of a Florida bank account or the deed to your home may feel convenient, but it can expose the asset to that child’s creditors, trigger gift-tax reporting, and unintentionally disinherit your other children. Coordination is everything. Every account, deed, and designation needs to point in the same direction.

Mistake 7: Doing Nothing Because the Estate Tax No Longer Applies

Florida has no state estate tax and no state income tax, which is part of why so many retirees move here. Many people take that to mean they do not need a plan at all. That is backwards. The absence of estate tax for most families means the real work of planning is about probate avoidance, incapacity protection, smooth transfer to heirs, and protecting a surviving spouse, none of which a tax exemption handles for you. A plan that ignores probate, homestead, and incapacity leaves your family with the very headaches you assumed you had avoided.

How Seasonal Residents Should Coordinate Two States

If you split time between Florida and another state, the cleanest approach is usually to declare Florida your domicile (assuming that matches reality), file a declaration of domicile under Fla. Stat. § 222.17, get a Florida driver’s license, register to vote here, and have your core documents drafted under Florida law. Then make sure any real estate you keep up north is held in a way, often through your revocable trust, that avoids a separate ancillary probate in that state. Snowbirds who skip this step can force their families into two probate proceedings in two states, doubling the cost and delay.

If you keep significant property or family ties in another state, work with attorneys in both. A Florida-based plan can be built to respect your out-of-state realities, but only if someone is actually looking at the whole picture. Our team handles with exactly this kind of multi-state coordination in mind.

A Short Checklist Before You Call It Done

• Have your documents been reviewed against current Florida law since you moved?
• Is your homestead devise consistent with the constitutional restrictions?
• Is your revocable trust actually funded?
• Are your power of attorney and health directives current and Florida-compliant?
• Does your named personal representative qualify under Florida law?
• Do your beneficiary designations and titling match your overall plan?
• Have you addressed domicile and any out-of-state real estate?

If you cannot confidently check every box, it is worth a conversation. You can review more about Florida wills and how the Florida probate process works, and when you are ready, reach out to schedule a consultation to put a plan in place that holds up where you actually live.

Frequently Asked Questions

Will my out-of-state will be valid in Florida?

Usually yes, if it was validly signed and witnessed in your prior state. But Florida does not recognize handwritten or oral wills, and out-of-state documents often name a personal representative who cannot serve under Florida law or reference assets you no longer own. Have any out-of-state will reviewed under Florida law after you relocate.

Can I leave my Florida home to anyone I want in my will?

Not always. Under Article X, Section 4 of the Florida Constitution, homestead property cannot be freely devised if you are survived by a spouse or minor child. Attempting to leave the home to someone else can invalidate the gift, and the property passes under a statutory formula instead. This is a common surprise for snowbirds.

Do I still need an estate plan if Florida has no estate tax?

Yes. Florida has no state estate or income tax, but planning is mostly about avoiding probate, protecting against incapacity, and ensuring a smooth transfer to heirs and a surviving spouse. None of those issues are solved by the absence of an estate tax, so a plan is still essential.

Who can serve as my personal representative in Florida?

Florida law (Fla. Stat. § 733.304) only allows a non-resident to serve if they are a close relative such as a spouse, child, parent, or sibling, or that relative’s spouse. A friend or distant relative living out of state is generally disqualified, so choose a qualified personal representative and a backup.

How should seasonal residents handle owning property in two states?

Declare Florida as your domicile if that matches reality, file a declaration of domicile, and have core documents drafted under Florida law. Hold out-of-state real estate in a revocable trust to avoid a second (ancillary) probate. Coordinating both states prevents duplicate, costly proceedings for your family.

I have sat across the table from too many Miami families who learned this the hard way. The widow whose late husband’s ex-wife was still listed on his life insurance. The snowbird who assumed his thirty-year-old New York will “just worked” in Florida. The new bride who didn’t realize Florida’s homestead rules quietly rewrote what she could leave to her own children. None of these people were careless. They simply assumed that a major life change and the documents governing their death would somehow sync up on their own. They don’t.

Why Major Life Events Break an Otherwise Good Estate Plan

An estate plan is a snapshot of your life and your wishes on a particular day. Marriage, divorce, and relocation each take a sledgehammer to the assumptions baked into that snapshot. The people you trust change. The assets you own change. And critically, the law governing your documents may change the moment you sign a deed on a Florida home or file a divorce petition.

There are really two ways an old plan fails. First, it can become factually wrong, naming people who no longer belong in your life. Second, and more dangerous, it can become legally non-conforming, meaning a document drafted under another state’s rules no longer does what you think it does once Florida law applies. Both failures are silent. You will never get a warning letter. The problem only surfaces in probate court, when it is too late and far more expensive to fix.

Updating Your Estate Plan After Divorce

Divorce is the event that catches the most people off guard, partly because Florida law does some of the work for you, and people assume it does all of it.

What Florida law revokes automatically

Under Florida Statutes section 732.507(2), any provision of your will that benefits your former spouse becomes void on the day your marriage is dissolved. The will is read as though your ex-spouse died before you. A parallel rule in section 732.703 applies to many non-probate assets, voiding a former spouse’s designation as beneficiary on accounts and policies governed by Florida law. Revocable trusts get similar treatment under section 736.1105.

This sounds reassuring, and it is, up to a point. But these statutes have real limits that trap unwary spouses:

• Federal law often overrides Florida law. Employer-sponsored retirement plans and pensions governed by ERISA, plus federal employee benefits, follow the named beneficiary regardless of your divorce. The U.S. Supreme Court confirmed this in Egelhoff v. Egelhoff and Kennedy v. Plan Administrator. If your ERISA 401(k) still names your ex, your ex still inherits it.
• The statute only revokes; it does not appoint. If your will left everything to your spouse with no alternate beneficiary, revoking that gift can drop your estate into intestacy, where the state’s default rules decide who inherits.
• It does nothing about fiduciary roles in practice. Do you really want your ex-spouse remaining as your health care surrogate or agent under a power of attorney during the months your divorce is pending? The statutes do not erase those roles cleanly, and the gap can be dangerous.

What you actually need to do

Do not rely on the automatic revocation statutes as your estate plan. Treat them as a safety net under a trapeze you are still expected to climb. After a divorce, you should execute a new will or amend your trust, sign new powers of attorney and a new health care surrogate, and personally re-file beneficiary designations on every account, especially retirement plans where federal law controls. If you have minor children, revisit your guardianship nomination too.

One more point that matters for Miami retirees: if you are in the middle of a divorce, you are still legally married, and your soon-to-be-ex retains spousal rights, including Florida’s elective share, until the judgment is final. Update your interim documents now and finalize the rest once the decree is entered.

Updating Your Estate Plan After Marriage or Remarriage

Marriage creates rights you cannot fully write out of your plan, which is exactly why it deserves a fresh look, particularly in blended families and second marriages later in life.

The pretermitted spouse and the elective share

If you sign a will and then marry, Florida’s pretermitted spouse statute (section 732.301) generally entitles your new spouse to an intestate share of your estate, as if you had no will, unless the will provided for the spouse or made clear the omission was intentional. So the will you wrote before the wedding may be partly overridden by a spouse you “forgot” to mention.

Beyond that, Florida guarantees a surviving spouse an elective share equal to 30% of the elective estate under section 732.201 and following. The elective estate is broad. It reaches well past your probate assets into trusts, certain joint accounts, and other transfers. You cannot simply disinherit a spouse in Florida by leaving everything to your children; the law lets the spouse claim that 30% slice unless they waived it.

Tools that protect a second marriage

For retirees who remarry, the central tension is providing for a new spouse while preserving an inheritance for children from a prior marriage. A few structures do this well:

1. A QTIP or marital trust that supports your surviving spouse for life, then passes the remainder to your children, keeping you in control of the ultimate destination.
2. A prenuptial or postnuptial agreement with a valid waiver of the elective share and homestead rights, executed with proper financial disclosure.
3. Lifetime planning vehicles for specific assets, such as the used to keep a home in the family while securing the right to live there. The Florida analog, the enhanced life estate or “Lady Bird” deed, is a workhorse here.

If part of your wealth or family is still tied to New York, coordination matters. A New York estate planning attorney can structure income-focused tools like a for Medicaid and benefit planning, which should be aligned with whatever Florida documents you put in place so the two states’ plans do not contradict each other.

Updating Your Estate Plan After a Move to Florida

This is the one that should be mandatory for every snowbird who decides to make Florida home. An out-of-state will is usually still valid in Florida, but valid is not the same as effective, and several Florida-specific rules can derail a plan that worked perfectly up north.

Self-proving wills and out-of-state formalities

Florida recognizes a will validly executed in another state, but two traps wait for the unwary. First, a will that was holographic (handwritten, unwitnessed) or oral may not be honored here even if your former state allowed it, because section 732.502 requires two witnesses. Second, if your will is not “self-proved” under section 732.503 with the correct Florida-style notarized affidavit, your personal representative may have to track down your original witnesses to prove it, years later and possibly across the country. Re-executing a clean, self-proved Florida will eliminates that headache.

The personal representative residency rule

Florida is unusually strict about who may serve as your executor, called a personal representative here. Under section 733.304, a non-relative who lives out of state generally cannot serve. Your trusted New Jersey neighbor or your accountant in Ohio is disqualified unless they are a close relative as defined by statute. Many transplants discover that the person they named to handle their estate is legally ineligible in Florida, leaving a gap that defaults to someone they never chose.

Homestead: Florida’s most powerful and most misunderstood rule

If you take one thing from this article, take this. Florida’s constitutional homestead protection (Article X, section 4) shields your primary residence from most creditors, but it also restricts how you can leave it. If you are survived by a spouse or a minor child, you generally cannot devise your homestead freely. Section 732.4015 and related law dictate where it goes, and a will provision that conflicts is simply ignored. A surviving spouse, for example, may receive a life estate with a remainder to your descendants, or may elect a one-half tenancy in common instead.

For a remarried snowbird trying to leave the condo to children from a first marriage while a new spouse is alive, this rule can blow up the entire plan. Homestead has to be solved deliberately, often with deeds, waivers, or trust planning, not assumed away.

Powers of attorney and health care documents

Your out-of-state durable power of attorney may be honored in Florida, but Florida banks and title companies are notoriously skeptical of unfamiliar forms. Florida’s power of attorney act (Chapter 709) requires powers to be exercised in a specific way, and many institutions will balk at an out-of-state document. Likewise, you want a Florida health care surrogate designation and living will under Chapter 765 that local hospitals will accept without argument during an emergency. Replacing these is inexpensive and spares your family a fight at the worst possible moment.

A Practical Checklist for Reviewing Your Plan

Whenever divorce, marriage, or a Florida move enters the picture, walk through this list rather than fixing one document in isolation:

• Will and any codicils, re-executed as a self-proved Florida will
• Revocable living trust and its funding (are Florida assets titled into it?)
• Durable power of attorney under Florida Chapter 709
• Health care surrogate and living will under Florida Chapter 765
• Beneficiary designations on retirement accounts, life insurance, and annuities, checked individually
• Personal representative and successor trustee choices, confirmed eligible under Florida law
• Guardianship nominations for any minor children
• Homestead and real estate deeds, including any Lady Bird or life estate deed
• Coordination with planning in any other state where you still own property

Most clients are surprised by how quickly this can be cleaned up once it is approached systematically. The cost of a thorough update is trivial next to the cost of a contested probate or an asset landing with the wrong person.

When to Bring in a Florida Estate Planning Attorney

You should review your plan with a Florida attorney any time you marry, divorce, become widowed, move your domicile to Florida, or buy Florida real estate. Snowbirds shifting their legal residence for tax and asset-protection reasons have an especially strong case for a top-to-bottom review, because that domicile change is exactly what activates Florida’s homestead, elective share, and personal representative rules.

Our firm helps Miami retirees and seasonal residents bring decades-old, out-of-state documents into line with current Florida law, and coordinate with counsel in other states where appropriate. You can learn more about our , read about Florida wills and the Florida probate process, or contact our office to schedule a review. Bring your existing documents; the fastest way to find a gap is to read the plan you already have against the life you are living now.

Frequently Asked Questions

Does getting divorced in Florida automatically remove my ex-spouse from my will?

Largely, yes. Florida Statutes section 732.507(2) voids any provision of your will favoring a former spouse once the divorce is final, reading the will as if your ex died before you. But this does not cover ERISA retirement plans governed by federal law, and it can push assets into intestacy if you named no alternate beneficiary. Sign a new will and re-file your beneficiary designations rather than relying on the statute alone.

Is my out-of-state will still valid after I move to Florida?

Usually it is valid if it was properly executed in your prior state, but it may not be effective. Handwritten or oral wills can fail Florida’s two-witness rule, a non-self-proved will is harder to admit to probate, your named out-of-state non-relative executor may be ineligible under section 733.304, and Florida homestead rules may override your gifts. Re-executing a Florida self-proved will is strongly recommended.

Can I leave my Florida home to my children if I have remarried?

Not always freely. Florida’s constitutional homestead protection restricts how you devise your primary residence when you are survived by a spouse or minor child. A surviving spouse may be entitled to a life estate or a one-half interest regardless of your will. This must be planned deliberately, often through a spousal waiver, a prenuptial agreement, or a properly drafted deed.

What is the elective share, and does it affect my new spouse?

Florida’s elective share gives a surviving spouse the right to claim 30% of the elective estate under section 732.201 and following, even if your will leaves them nothing. The elective estate reaches beyond probate assets into certain trusts and joint accounts. After a marriage, you cannot simply disinherit your spouse unless they have validly waived this right, typically in a prenuptial or postnuptial agreement.

How soon after a major life change should I update my estate plan?

Treat marriage, divorce, widowhood, or a move to Florida as a trigger to review your entire plan within about 90 days. Gaps are silent and only surface in probate, when they are expensive to fix. Review your will, trust, powers of attorney, health care documents, and every beneficiary designation together rather than updating one document in isolation.

For the retirees and seasonal residents who make up so much of South Florida, that combination of total control now and a clean handoff later is exactly the point. I have prepared and litigated around these deeds for years, and the questions I hear from snowbirds in Miami-Dade are almost always the same. This article walks through how the enhanced life estate deed actually works under Florida law, where it shines, and where it quietly causes problems people do not see coming.

What Is a Lady Bird Deed in Florida?

The “Lady Bird” nickname is folklore, not a legal term. The instrument that matters is the enhanced life estate deed. It divides ownership of your property into two slices across time. The first slice is your life estate, which lasts as long as you live. The second is the remainder interest, which belongs to whomever you name as the remainder beneficiary and only becomes possessory at your death.

What makes the life estate “enhanced” is a set of retained powers written into the deed itself. A garden-variety life estate hands real, present rights to the remainder beneficiaries the day you sign. An enhanced life estate deed does the opposite. You reserve the right to:

• Sell the property outright, with no signature required from the remainder beneficiary;
• Mortgage, lease, or otherwise encumber it during your lifetime;
• Convey it to someone else and wipe out the named beneficiary’s interest entirely;
• Keep all rents, profits, and use of the home for yourself.

Only what is left at your death passes to the remainder beneficiary. In legal terms, the future interest you grant is fully defeasible. That single design choice is what separates a useful estate planning tool from an expensive mistake, and it is why the document has to be drafted with care rather than pulled off a website.

Florida Recognizes the Deed by Custom, Not Statute

People are often surprised to learn there is no Florida statute that says “Lady Bird deeds are valid.” Florida is one of a small handful of states where these deeds are recognized through long-standing title practice, ethics opinions, and Department of Revenue guidance rather than a dedicated statute. The Florida Bar has addressed them, and title insurers in the state routinely insure property that passed through one. So the deed is well accepted here, but its strength depends entirely on precise drafting, because there is no statutory safety net catching sloppy language.

Why Snowbirds and Retirees Use Enhanced Life Estate Deeds

If you split your year between a northern state and a Florida home, an enhanced life estate deed solves several problems that hit seasonal residents harder than year-round ones.

It Keeps Your Florida Home Out of Probate

Florida probate is public, slow, and frequently more expensive than out-of-state families expect. Worse, if your primary residence and estate are up north, your family may face ancillary probate in Florida just to clear title on the condo or house here, on top of probate back home. An enhanced life estate deed sidesteps that. Title vests in your beneficiary automatically, so there is no second court proceeding in Miami-Dade simply because you owned property in two states.

It Preserves Your Homestead and Tax Benefits

Because you keep a life estate, you remain the owner for property tax purposes. That means your Florida homestead exemption under Article X, Section 4 of the Florida Constitution stays intact, and your Save Our Homes assessment cap (Article VII, Section 4) continues to limit how fast your assessed value can rise. Recording the deed does not trigger a reassessment the way an outright transfer to your children would, and it does not count as a completed gift for federal gift tax purposes because you retained the power to revoke it.

It Protects Medicaid Planning for Long-Term Care

This is the one that matters most as people age. In Florida, a properly drafted enhanced life estate deed is generally not treated as a transfer for less than fair market value, so it does not create a Medicaid penalty period the way gifting the house away would. The home remains an exempt homestead asset while you are alive. And because the property passes outside your probate estate, it can fall outside the reach of Florida’s Medicaid Estate Recovery program, which under federal law (42 U.S.C. § 1396p) recovers against the probate estate. For families worried about a nursing home swallowing the house, that distinction is enormous. The same logic drives much of the trust planning we coordinate with our colleagues at for clients who keep property in both states.

Lady Bird Deed vs. Other Florida Estate Planning Tools

An enhanced life estate deed is not the only way to avoid probate on a home, and it is not always the best one. Here is how it compares to the alternatives I most often discuss with clients.

1. Traditional life estate deed. Cheaper-looking, far more dangerous. You lose the power to sell or mortgage without your children’s cooperation, and the transfer is a completed gift that can trigger Medicaid penalties. I rarely recommend these.
2. Revocable living trust. More flexible and better suited if you own multiple properties, have minor or special-needs beneficiaries, or want privacy and incapacity planning baked in. It costs more to set up but does far more work.
3. Joint ownership with right of survivorship. Simple, but it exposes the home to your co-owner’s creditors and divorces immediately, and it gives away control the day you sign.
4. Enhanced life estate (Lady Bird) deed. The sweet spot when you own one Florida home, want to keep absolute control, and have a clean, capable beneficiary or two who will inherit it outright.

For clients with income or charitable goals layered on top of property planning, we sometimes pair these strategies with vehicles like a on the New York side of a dual-state plan. The right answer depends on your assets, your family, and where your tax home really is, which is why a tool-by-tool comparison with an attorney beats any one-size template. You can read more about our to see how these pieces fit together.

How a Lady Bird Deed Is Created in Florida

The mechanics look deceptively simple, which is part of the trouble. A valid enhanced life estate deed in Florida must be in writing, signed by the grantor, and witnessed by two witnesses and acknowledged before a notary, consistent with the formalities for conveying real property under Florida Statutes Chapter 689 and § 695.26 for recording. Then it must be recorded in the official records of the county where the property sits, which for our clients is usually the Miami-Dade County Clerk.

The critical work is in the granting language. The deed must clearly reserve the enhanced powers, the right to sell, mortgage, and revoke during your lifetime, or a court could later read it as an ordinary life estate. I have seen do-it-yourself deeds that named a “life estate” but omitted the retained power to convey, and the result was a homeowner who could not refinance without tracking down adult children, exactly the trap the deed was supposed to avoid.

Common Mistakes I See

• Naming a beneficiary who later has creditor or divorce trouble. The remainder interest is contingent while you live, which helps, but choose beneficiaries thoughtfully.
• Forgetting the mortgage. A due-on-sale clause usually is not triggered by this deed, but always confirm with the lender and review the loan documents.
• Ignoring homestead devise restrictions. If you have a spouse or minor child, Florida’s constitutional homestead restrictions on devise can override your deed. This is the single most common reason a “simple” Lady Bird deed blows up.
• Multiple beneficiaries with no plan for disagreement. If two children inherit and one wants to sell while the other wants to keep it, you have built a future lawsuit.

When a Lady Bird Deed Is Not the Right Choice

I tell seasonal residents to think twice about an enhanced life estate deed if they have a blended family with competing heirs, a beneficiary who receives needs-based government benefits and could be disqualified by an outright inheritance, or significant assets that justify a fully funded revocable trust. The deed handles one asset cleanly. It does not handle incapacity, it does not coordinate beneficiary designations on your accounts, and it does not divide a complicated estate fairly. When those issues are in play, a trust-centered plan is almost always the better build. If your situation is straightforward, though, this deed is one of the most efficient probate-avoidance tools Florida offers. Our wills and estate documents page and our overview of Florida probate explain how the pieces connect, and you are welcome to contact our Miami office to talk through your own facts.

The Bottom Line for Florida Homeowners

A Lady Bird deed gives you something rare in estate planning: meaningful protection with almost no loss of control. You keep your homestead exemption, your Save Our Homes cap, your right to sell on a whim, and your Medicaid eligibility, while handing your heirs a probate-free path to the home. For a snowbird who simply wants the Miami condo to pass to a child without a court fight or a second probate up north, it is often the cleanest answer on the menu. The catch is that “properly drafted” does real work in every sentence above. Have a Florida estate attorney prepare and record it, confirm the homestead and beneficiary issues before you sign, and the deed will do exactly what you hoped, quietly, when it counts.

Frequently Asked Questions

Does a Lady Bird deed avoid probate in Florida?

Yes. With a properly drafted and recorded enhanced life estate deed, your Florida property passes automatically to the named remainder beneficiary the moment you die. No probate or court order is needed to transfer title, which also helps out-of-state families avoid a separate ancillary probate in Florida.

Will a Lady Bird deed affect my Florida homestead exemption or property taxes?

No. Because you keep a life estate and remain the owner for tax purposes, recording the deed does not disturb your homestead exemption or your Save Our Homes assessment cap, and it does not trigger a property tax reassessment the way an outright transfer to your children would.

Can I sell or refinance my home after signing a Lady Bird deed?

Yes, as long as the deed reserves the enhanced powers. A correctly drafted enhanced life estate deed lets you sell, mortgage, lease, or revoke the deed during your lifetime without the beneficiary’s signature or consent. This is the key feature that separates it from a traditional life estate.

Does a Lady Bird deed protect my home from Medicaid estate recovery?

Often, yes. A properly drafted deed is generally not treated as a disqualifying transfer for Medicaid, and because the property passes outside your probate estate, it can fall outside Florida’s Medicaid Estate Recovery program, which under federal law recovers against the probate estate. Get specific advice, because facts matter.

Is a Lady Bird deed better than a living trust?

It depends. A Lady Bird deed is ideal when you own one Florida home and want a simple, low-cost way to keep control and avoid probate. A revocable living trust is usually better for multiple properties, blended families, special-needs beneficiaries, or full incapacity planning.

I’ve sat across the table from a lot of clients who walked in convinced they needed a trust because a neighbor at their condo association said so, and from just as many who insisted a simple will was “all anyone really needs.” The honest answer is that both groups are sometimes right. Let’s walk through how these documents actually behave under Florida law so you can decide with clear eyes.

What a Florida Will Actually Does

A last will and testament is governed by Chapter 732 of the Florida Statutes. To be valid in Florida, your will must be signed at the end by you (the testator) in the presence of two witnesses, who must also sign in your presence and in the presence of each other. Florida recognizes “self-proving” wills under section 732.503, where you and your witnesses sign an affidavit before a notary—this spares your witnesses from having to be tracked down and deposed years later.

Here’s the part people miss: a will does nothing until you die, and even then it doesn’t move a single asset on its own. It’s a set of instructions to a probate judge. Your named personal representative (Florida’s term for an executor) files the will with the circuit court, the court issues letters of administration, and only then can your representative gather assets, pay creditors, and distribute what’s left.

The probate reality in Miami-Dade

Probate in Florida is not the catastrophe some seminars make it out to be, but it is a real process with real friction:

• Time. A formal administration in Miami-Dade County typically runs anywhere from six months to over a year, longer if there’s a dispute or a messy creditor situation.
• Cost. Florida law (section 733.6171) sets presumptively reasonable attorney’s fees as a percentage of the estate—roughly 3% on the first $1 million. Add court costs and personal representative fees on top.
• Publicity. Probate is a public court record. Anyone can pull your file and see what you owned and who got it.
• The creditor period. Florida requires a notice-to-creditors period (generally three months from publication) before the estate can close.

For modest estates, Florida offers summary administration—available when the probate estate is under $75,000 or the decedent has been dead more than two years. It’s faster and cheaper, but it doesn’t fit everyone.

What a Florida Revocable Living Trust Does

A revocable living trust is an entity you create during your lifetime, usually naming yourself as both the grantor and the initial trustee. You move assets into it—retitling your home, brokerage accounts, and bank accounts in the name of the trust. Because the trust technically owns those assets, there’s nothing for the probate court to administer when you die. Your named successor trustee simply steps in and distributes everything according to your instructions. Florida trusts are governed by the Florida Trust Code, Chapter 736 of the Florida Statutes.

“Revocable” is the key word. As long as you’re alive and competent, you can amend it, restructure it, or tear it up entirely. You keep total control. You still file the same tax return; the IRS treats a revocable trust as you for income tax purposes during your life, so there’s no separate tax burden while you’re around.

The advantages people actually feel

• Probate avoidance. Trust assets pass outside court entirely. Your successor trustee can often distribute within weeks, not months.
• Privacy. A trust is not filed publicly. Your family’s business stays your family’s business.
• Incapacity planning. This is the underrated benefit. If you have a stroke or develop dementia, your successor trustee manages trust assets immediately—no guardianship proceeding, no court oversight. A will offers nothing here, because a will only speaks at death.
• Out-of-state property. If you own real estate in another state, a trust avoids a second “ancillary” probate up north.

Why This Matters More for Snowbirds and Seasonal Residents

If you split your year between Miami and a home in New York, New Jersey, Michigan, or Ohio, the trust conversation changes shape. Property in two states means, at death, potentially two probate proceedings—one in Florida and an ancillary one wherever your northern home sits. That’s two sets of attorneys, two court systems, two timelines. A revocable trust that holds both properties collapses that into a single, court-free administration.

Florida domicile is its own planning issue. Establishing Florida as your legal home affects whether your estate gets pulled into a state with its own estate or inheritance tax. Florida has no state estate tax and no state income tax, which is a big reason so many retirees make the move official. A well-drafted Florida estate plan reinforces your domicile claim. If you’re managing property and family ties across state lines, it’s worth coordinating with counsel in both jurisdictions—our colleagues handle complex multi-state estate work, including for clients who keep a foothold up north.

A note on long-term care and asset protection

Be careful with one common misconception: a revocable living trust does not protect your assets from creditors or from Medicaid spend-down for nursing home care. Because you retain full control, those assets are still considered yours. Clients who are worried about long-term care costs sometimes need a different, irrevocable structure—and for those with disabled family members or income-eligibility concerns, specialized vehicles like a can preserve benefits in ways a standard revocable trust never will. Don’t assume one document solves every problem.

Florida’s Homestead Wrinkle

No Florida estate planning discussion is complete without homestead. Your Florida homestead enjoys powerful constitutional protections, but those same protections create restrictions on how you can leave the home. If you’re married or have minor children, Article X, Section 4 of the Florida Constitution limits your ability to devise the homestead freely—your spouse and minor children have rights that override your will or trust.

Putting a homestead into a revocable trust is common and usually fine, but it must be done carefully to preserve your homestead tax exemption and creditor protection. This is exactly the kind of detail where a DIY online trust goes wrong. I’ve cleaned up more than a few of those.

Cost: The Honest Comparison

People fixate on the upfront price, and a will is genuinely cheaper to draft than a trust. But the comparison isn’t fair unless you count the back end. A will costs less today and more later—at probate. A trust costs more today and, if funded properly, saves your family the probate expense entirely. The math usually favors a trust once you own a home plus a few accounts, and it favors a trust strongly when you own property in more than one state.

The catch—and it’s a big one—is funding. A trust only works for the assets actually titled into it. An unfunded trust is an expensive paperweight; the assets you forgot to retitle will still go through probate. This is the single most common failure I see. Drafting the trust is half the job; moving the assets is the other half.

Which One Fits Your Family?

Use this as a rough guide, then talk to an attorney about your specifics:

1. A will may be enough if: your estate is modest, your assets already pass by beneficiary designation (retirement accounts, life insurance) or joint ownership, your affairs are simple, and you don’t own out-of-state property.
2. A revocable trust likely fits better if: you own real estate—especially in two states—you value privacy, you want seamless incapacity planning, you have a blended family, or you simply want to spare your loved ones the probate process.
3. Most people need both. Even with a trust, you should have a “pour-over will” that catches any asset you forgot to fund into the trust and directs it there. The two documents work as a team, alongside a durable power of attorney and a health care directive.

Whatever route you take, the documents have to be drafted to Florida standards and updated as your life changes. A move, a marriage, a grandchild, a new property—each is a reason to revisit the plan. If you’d like a clear-eyed review of what fits your situation, our Florida team handles exactly this kind of planning; you can learn more about our or read our overview of Florida wills and how the Florida probate process works. When you’re ready, reach out to schedule a consultation.

The goal isn’t to buy the fanciest document. It’s to make sure that when something happens to you, your family knows exactly what to do—and isn’t stuck in a courthouse hallway figuring it out.

Frequently Asked Questions

Does a revocable living trust avoid probate in Florida?

Yes, but only for assets actually titled in the trust’s name. A revocable living trust avoids Florida probate because the trust, not you personally, owns the assets at death, so your successor trustee can distribute them without court involvement. Any asset you forget to fund into the trust will still go through probate, which is why proper funding is essential.

Do I still need a will if I have a revocable living trust?

Yes. Even with a trust, you should have a ‘pour-over will’ that captures any asset you neglected to transfer into the trust and directs it there at death. The will and trust work together, alongside a durable power of attorney and a health care directive, to form a complete Florida estate plan.

Does a Florida revocable trust protect my assets from creditors or Medicaid?

No. Because you keep full control of a revocable trust, the assets are still legally yours and remain exposed to creditors and to Medicaid spend-down for long-term care. Asset protection generally requires a properly structured irrevocable trust, which should be discussed with an attorney based on your goals and timeline.

I'm a snowbird with homes in two states. Why does that change my plan?

Owning real estate in two states can trigger two separate probate proceedings at death—one in Florida and an ancillary probate in your other state. A revocable living trust that holds both properties consolidates everything into a single, court-free administration and helps reinforce your Florida domicile, which matters for state tax purposes.

How much does probate cost in Florida?

Florida Statute 733.6171 sets presumptively reasonable attorney’s fees as a percentage of the estate—roughly 3% on the first $1 million—plus court costs and personal representative fees. Smaller estates under $75,000, or those where the person died more than two years ago, may qualify for faster, cheaper summary administration.

I have sat across the table from too many surviving spouses, adult children, and snowbirds who assumed that adding a name to a deed or a bank account was a tidy substitute for an estate plan. It almost never is. Below is the candid version of what joint ownership actually does in Florida, and where it quietly goes wrong.

How Joint Ownership Works in Florida

Florida recognizes several ways to hold title jointly, and the differences are not academic. The label on your deed or account signature card controls who inherits, whether probate is avoided, and which creditors can reach the asset.

• Tenancy in common. Each owner holds a separate, divisible share. There is no survivorship. When a tenant in common dies, that share passes through their estate, not to the co-owner. This is Florida’s default for unmarried co-owners unless survivorship language is stated.
• Joint tenancy with right of survivorship (JTWROS). The survivor takes the whole. Under Florida Statutes § 689.15, survivorship is not presumed for real estate or personal property unless the instrument expressly says so. Drop the magic words and you may have a plain tenancy in common by accident.
• Tenancy by the entirety (TBE). Available only to married couples, this is Florida’s strongest form. It carries automatic survivorship and shields the property from the individual creditors of one spouse. For homestead and marital accounts, it is often the right tool, but it evaporates on divorce, converting to a tenancy in common.

The trap is that all three can look identical on a casual reading of a deed or a bank statement. The legal consequences are worlds apart.

The Survivorship Override: When the Deed Beats the Will

Here is the single most common shock I deliver to families. A survivorship asset passes by operation of law the instant the co-owner dies. It does not care what your will says.

Suppose a Miami widow signs a carefully drafted will leaving everything equally to her three children. Years earlier, to make bill-paying easier, she added her eldest daughter as a joint owner with survivorship on her brokerage account and her condo. When she dies, that account and that condo belong to the daughter alone. The will controls nothing it cannot reach, and it cannot reach assets that already transferred by survivorship. The other two children inherit a fraction of what their mother intended, and the family relationship rarely survives the math.

This is not a drafting error in the will. It is a structural conflict. Joint ownership is a beneficiary designation in disguise, and like a payable-on-death tag, it sits outside and ahead of your testamentary plan.

The “Convenience” Joint Owner Problem

Adding an adult child to an account “just to help” is the pitfall I see most often among retirees. There is a narrow Florida fix for bank accounts: under Florida Statutes § 655.79, a multiple-party account is presumed to carry survivorship, but that presumption can be rebutted by clear and convincing evidence that the account was opened only for convenience. Proving it after death, however, means litigation, expert testimony about the parent’s intent, and legal fees that can exceed the disputed balance. If your goal is convenience, a durable power of attorney or an agent on the account accomplishes it without handing over ownership.

Creditor and Divorce Exposure You Did Not Sign Up For

The moment you add a joint owner, that person’s problems become your property’s problems. A joint owner’s creditors, a judgment from a car accident, a tax lien, a bankruptcy filing, or a divorce can attach to the jointly held asset, even if you provided every dollar.

Consider a snowbird couple who put their adult son on the deed to their Florida home to “avoid probate.” The son is sued after a business dispute. A creditor can now pursue his fractional interest in your homestead. Tenancy by the entirety protects spouses from each other’s individual creditors, but it does nothing once you bring a child or a third party onto the title, because that protection is reserved for married couples alone.

• A joint owner cannot unilaterally sell the whole property, but they can often force a partition action and compel a sale.
• Adding a non-spouse to your homestead can jeopardize Florida’s constitutional homestead creditor protection and its property-tax benefits, including the Save Our Homes assessment cap and your homestead exemption.
• A joint account is fully reachable by the creditors of any owner on the signature card.

The Hidden Tax Cost: Losing the Step-Up in Basis

This pitfall costs families real money and almost nobody sees it coming. When you add a child as a joint owner during your life, you may be making a present gift of an interest in the property, potentially requiring a federal gift tax return (Form 709) if the value exceeds the annual exclusion.

More importantly, you sacrifice the income-tax advantage of inheritance. Property that passes at death generally receives a stepped-up cost basis to fair market value under Internal Revenue Code § 1014. Property that a child receives as a lifetime gift carries over your original basis. The difference can be enormous.

Imagine a condo bought decades ago for $80,000, now worth $600,000. If a child inherits it at death, their basis steps up to $600,000 and they can sell with little or no capital-gains tax. If that same child was added as a joint owner years earlier and receives the property through survivorship of a lifetime gift, a large portion of that $520,000 appreciation may be taxable when they sell. A revocable living trust or a properly drafted deed preserves the step-up. A casual joint deed often destroys it.

Special Pitfalls for Snowbirds and Multi-State Owners

Seasonal residents face a layer of complication that full-time Floridians do not. If you keep a home up north and a place in Miami, joint titling decisions ripple across two legal systems.

Domicile matters. Florida has no state estate tax and no income tax, which is a primary reason retirees establish Florida residency. But your northern home is governed by that state’s laws, and many states impose their own estate or inheritance taxes. Titling your out-of-state property jointly to dodge ancillary probate can collide with that state’s creditor rules and tax treatment in ways that surprise the family later.

If you own real estate in more than one state and rely on joint ownership rather than a trust, you risk ancillary probate, a second, separate court proceeding in the other state, precisely the cost and delay you were trying to avoid. A revocable living trust that holds property in both states is usually the cleaner answer. For New York homeowners weighing how to transfer a residence while keeping the right to live in it, the analysis of shows how a deed strategy can preserve control and tax benefits that a blunt joint deed throws away.

Better Alternatives to Joint Ownership in Florida

None of this means survivorship is always wrong. Between spouses, tenancy by the entirety is frequently excellent. The error is using joint ownership as a one-size substitute for planning. Depending on your goals, these tools usually serve retirees and snowbirds better:

1. Revocable living trust. Avoids probate in every state where it holds property, keeps your plan private, preserves the basis step-up, and lets you decide exactly who gets what and when, without surrendering ownership during your life.
2. Enhanced life estate (“Lady Bird”) deed. Florida permits this deed, which lets you keep full control of your homestead, sell or mortgage it freely, and pass it to named beneficiaries at death without probate, while keeping homestead protections and the step-up intact.
3. Durable power of attorney. Solves the “help me with the bank” problem without giving away ownership or exposing the account to your helper’s creditors.
4. Payable-on-death and transfer-on-death designations. Pass accounts directly to beneficiaries at death, coordinated with, not in conflict with, your will.
5. A current, coordinated will. Even with non-probate transfers, a properly executed Florida will remains the backstop. New York residents can see how a foundational document is structured in this overview of the , and the same coordination principle applies in Florida.

The right mix depends on your family, your assets, and whether you split your year between states. There is no template that fits every retiree, which is exactly why generic joint titling causes so much damage.

When to Talk to a Florida Estate Planning Attorney

If you have already added someone to a deed or account, the situation is usually fixable, but timing matters and some moves carry tax consequences. It is worth a focused review if any of these describe you: you own property in more than one state, you put a child or friend on a deed or account for convenience, you are a recent Florida resident who never updated your titling, or you simply are not sure what the words on your deed actually mean.

Our office helps Miami retirees and seasonal residents untangle joint ownership and build a plan that does what they actually want. You can review our broader , learn how assets move through Florida probate when planning falls short, or simply reach out to schedule a consultation. A short conversation now is far cheaper than a partition suit or a basis disaster later.

Frequently Asked Questions

Does joint ownership with survivorship override my will in Florida?

Yes. A survivorship asset passes automatically to the surviving co-owner the moment the other owner dies, before the will ever takes effect. Your will only controls assets in your probate estate, so joint accounts and survivorship deeds bypass it entirely, regardless of what your will says.

What is the difference between tenancy by the entirety and joint tenancy in Florida?

Tenancy by the entirety is available only to married couples and shields the property from the individual creditors of one spouse, with automatic survivorship. Joint tenancy with right of survivorship is open to anyone but offers no such creditor protection. Under Florida Statutes 689.15, survivorship is not presumed unless the instrument expressly states it.

Will adding my child to my deed avoid probate in Florida?

It may avoid probate on that asset, but it creates new problems: exposure to the child’s creditors and divorce, possible loss of homestead and Save Our Homes benefits, a potential taxable gift, and loss of the stepped-up basis at death. A revocable trust or an enhanced life estate (Lady Bird) deed usually avoids probate without those downsides.

How does joint ownership affect the step-up in basis?

Property inherited at death generally receives a stepped-up basis to fair market value under IRC Section 1014, reducing capital-gains tax on a later sale. Property given to a child as a lifetime gift through joint titling often keeps your original lower basis, which can create a large taxable gain when the child sells.

I am a snowbird with homes in two states. Should I use joint ownership to avoid ancillary probate?

Usually not. Joint titling can trigger creditor exposure and tax surprises and can still leave you with a second court proceeding in the other state. A revocable living trust holding both properties typically avoids ancillary probate cleanly while preserving control, privacy, and the basis step-up.