How do Florida's homestead rules affect an estate plan from another state?

The devise restriction

If you own your Florida homestead and are survived by a spouse or a minor child, you cannot leave it to anyone else by will, except that you may leave it to your spouse if there is no minor child. If you try, the attempted gift fails and Florida law decides who takes it: if you also leave descendants, the spouse receives a life estate, or may elect a one-half interest as a tenant in common, and your descendants take the rest.

Putting the home in a revocable trust does not avoid this. Florida treats a transfer to a trust you can revoke the same way it treats a will.

When it matters

For a couple in a first marriage who leave everything to each other, the restriction rarely changes the result. In a second marriage, a plan that leaves the house to your own children can fail outright unless your spouse signed a valid waiver.

The tax side

Florida's homestead exemption and the Save Our Homes cap on assessment increases are valuable. When the home is retitled into a trust, it has to be done in a way that keeps both.

How we Floridize it

Florida homestead provisions in the trust, a deed into the trust that preserves the exemption, clear authority for the trustee to sell or deed the home at death, and, where the family needs it, a spousal waiver signed with proper disclosure.

Common questions

Can I leave my Florida home to my children instead of my spouse?

Not if you are survived by your spouse, unless your spouse has validly waived homestead rights. The constitutional restriction applies to a home held in a revocable trust too.

Will putting my home in a trust cost me the homestead exemption?

It should not, if the deed and the trust are drafted to preserve it. That is one of the items we check.