Can You Sell a House With a Lady Bird Deed in Florida?

Can You Sell a House With a Lady Bird Deed in Florida?

The owner can sell the home whenever the owner wants, to any buyer, for any price, and keep every dollar of the proceeds. The reserved power to sell and convey the property in fee simple absolute without the joinder or consent of any beneficiary is what makes a deed a lady bird deed. A sale conveys the whole title to the buyer and the remainder interest ends.

The Florida Supreme Court settled this question in 1917 in Oglesby. David F. Gamble, in failing health, deeded parcels of land to each of his children as gifts but kept a life interest and the right to resell. Later he sold the parcel he had named his daughter Mary to receive. After his death Mary sued to clear her title. She lost. The court read the reservation: “he hereby reserves the right to do so, the consideration hereof being a gift”. The court held that “[t]he conveyance to Mary E. Gamble was a gift from the father to the daughter and the reservation therein that is quoted above clearly contemplated and reserved to the grantor the right to sell the land.”

The beneficiary named in a lady bird deed cannot stop the sale. The beneficiary has no present ownership and no right to approve the transaction. The owner’s reserved power is the whole point.

Does the Beneficiary Have to Sign When I Sell?

The owner signs the deed to the buyer. If the home is the owner’s homestead, a married owner’s spouse joins. The beneficiaries named in the lady bird deed sign nothing and are not parties to the closing.

The title company reads the recorded lady bird deed and the reserved powers. Title insurers insure enhanced life estate deeds regularly and treat the remainder as an interest the owner can divest. The firm’s lady bird deed reserves to the owner the power to sell, convey, mortgage, lease and otherwise dispose of the property in fee simple absolute, with or without consideration, without the joinder or consent of any remainder beneficiary, and the power to cancel the deed and divest every remainder beneficiary. A title insurer sees those words, confirms the owner is the same person, and issues the policy.

A few title agents, unfamiliar with enhanced life estate deeds, ask the beneficiaries to sign anyway. This is unnecessary and can cause problems. A beneficiary might refuse, not because the law requires a signature but because the beneficiary misunderstands the request. Having the beneficiaries sign also muddies the chain of title. The safer practice is to record a closing deed that recites the prior deed and the reserved power and have the owner sign alone.

Do I Have to Revoke the Lady Bird Deed Before Selling?

No. The sale itself exercises the power reserved in the lady bird deed. The deed to the buyer recites the recorded lady bird deed by its official records book and page, states that the owner is exercising the power reserved in it, and conveys fee simple to the buyer. Recording that deed is enough.

Compare what happens when a deed lacks those powers. In 2025 the Fourth District Court of Appeal decided Varano. A husband and wife in a second marriage deeded themselves a life estate in their Palm Beach County home, with one half of the remainder to her children and one half to a trust for his son. The deed had none of the lady bird powers. After he died she contracted to sell. The trial court gave summary judgment to the son’s trust and ordered $281,435.35 of sale proceeds held in escrow paid to the trust, and the appeals court affirmed. The court wrote, “[s]ignificantly, the deed did not contain any language granting the widow the authority to sell the home after the decedent's death”, and that “[a] life tenant cannot convey an interest greater than what she owns.”

The difference between that outcome and a lady bird deed is the reserved power to sell. With the power, the owner sells alone. Without it, $281,435.35 went to the stepson’s trust.

Can I Refinance or Get a HELOC With a Lady Bird Deed?

The owner signs the mortgage alone under the reserved power to mortgage. The lien attaches to the property and the beneficiary takes subject to that lien at death. A refinance or a home equity line does not defeat the deed and does not require the beneficiary’s signature.

Some lenders ask the owner to revoke the lady bird deed and re-record it after closing to satisfy their underwriting department. That costs $250 plus recording. It changes nothing about the law, but the lender’s underwriting guidelines may require it before funding. If the lender insists, the firm records a revocation, the loan closes, and the firm records a new lady bird deed.

The Third District Court of Appeal decided a related question in 2023 in Hirschenson. A son deeded a Miami-Dade home to his mother by an enhanced life estate deed so she could take a reverse mortgage. The deed and the reverse mortgage were recorded the same day. One paragraph of the deed said “grantor” where it meant “grantee,” so read literally the mother had no power to mortgage without her son’s consent. After she died the lender foreclosed, the son argued she had no power to mortgage, and the trial court reformed the deed after a bench trial. The appeals court affirmed, recounting that “[t]he deed’s creator testified that a mistake was made by incorrectly inputting ‘grantor’ instead of ‘grantee’ in paragraph 6.” One wrong word cost a lawsuit.

Can I Rent Out My House With a Lady Bird Deed?

The owner keeps possession, the rents and the right to lease. The reserved powers include the power to lease, so the owner can rent the home to any tenant for any term. A tenant’s lease continues at the owner’s death and the beneficiary becomes the landlord.

Renting a homestead can cost the homestead exemption under the property tax rules. Florida treats renting the home for more than 30 days in two consecutive years as abandonment of the homestead exemption. The exemption reduces the assessed value for tax purposes, and the Save Our Homes cap limits how much the assessment can rise each year. Losing the exemption resets the assessment to market value and costs the cap. A short-term rental is different from a long-term lease. The owner who plans to rent should check what the property appraiser requires before listing the property.

The owner can also rent the home to a family member. Florida law does not prohibit renting to a child or a sibling. If the owner lives elsewhere and rents the former home, the exemption is usually lost, whether the tenant is a stranger or a relative.

What Happens to the Sale Proceeds?

Sale proceeds belong to the owner. The lady bird deed does not attach to the cash and the beneficiaries have no claim to it. The owner can spend the money, invest it, give it away or buy a new home.

If the owner buys a new home and wants the same plan, a new lady bird deed is needed for the new home. A lady bird deed is recorded in the county where the property sits and describes that property by its legal description. A deed recorded in one county does not affect property in another county, and a deed describing one parcel does not affect a different parcel. The firm records a new lady bird deed on the replacement home for $399 for one owner or $449 for a married couple, plus recording.

Save Our Homes portability has a three-year window to move the assessment cap from the old homestead to the new one. The owner applies for portability at the property appraiser’s office by March 1 of the year after establishing the new homestead. Missing the window resets the assessment to full market value. The lady bird deed and portability are two separate decisions, but a homeowner who sells and buys should think about both.

Can Florida Go After the Money if I Sell My House While in a Nursing Home?

A lady bird deed keeps your home out of probate and protects it from estate recovery after death. The deed does not protect sale proceeds while you are alive.

Florida’s Medicaid manual treats the owner of an enhanced life estate as a complete owner. The homestead is excluded from the $2,000 asset limit while the owner lives there or intends to return. The moment the owner sells, the excluded home becomes cash in a bank account, and that cash is a countable asset. Medicaid can count it the month after the sale closes.

The deed never attached to money. The deed avoided probate, so no estate recovery claim could reach the home after death. The deed left the home itself out of the state’s reach. An owner who sells before dying converts an excluded asset into a countable one.

If you are in a nursing home and considering a sale, you need a conversation with someone who handles Medicaid planning before you sign a contract. The question is whether the proceeds will disqualify you, and whether spending them down or putting them into another excluded form is possible before the state counts them.

What About Capital Gains When I Sell?

The owner is selling the owner’s own home. The owner’s own basis applies, and the owner claims any exclusion the owner has earned.

Federal law allows a home-sale exclusion of $250,000 for a single owner or $500,000 for a married couple filing jointly, if the home was the primary residence for at least two of the last five years. The lady bird deed does not change that. The deed left the owner’s ownership in place for life, so the home is still the owner’s to sell.

The step-up in basis that the beneficiary would have received at death only happens at death. If the owner sells during life, the beneficiary never receives anything, and the step-up never occurs. The owner uses the owner’s purchase price, plus improvements, minus depreciation if any was taken.

Owners who have owned a home for decades sometimes owe capital gains tax after the exclusion, especially in counties where values rose sharply. The lady bird deed is not a capital-gains tool. It is a probate-avoidance and estate-recovery tool.

Can the Beneficiaries Sell the House While I Am Alive?

The beneficiaries own nothing while the owner is alive. The deed gives them a remainder that means nothing until the owner dies, and the owner’s reserved power to sell or revoke can erase that remainder at any time.

A sale during the owner’s lifetime belongs to the owner. At death, the picture reverses. The owner’s interest ends, the beneficiaries become the owners, and the beneficiaries can sell.

The beneficiaries record a certified copy of the death certificate and usually an affidavit identifying themselves. Once the county records show them as owners, they sign a deed to the buyer and receive the proceeds. No probate is involved. That transfer is what the lady bird deed was designed to accomplish.

If the owner is close to the end and the family is planning a sale soon after death, the better question is whether the deed names the right people and whether anything else, such as a spouse’s waiver, needs to be in place first.

Does My Spouse Have to Sign When I Sell?

If the home is your Florida homestead, yes. A sale, mortgage or gift of homestead requires the spouse’s joinder. The Florida Constitution imposes that rule, and the lady bird deed’s reserved powers do not override it.

A married owner who signs a deed alone, thinking the reserved power is enough, has signed a void deed. The buyer takes nothing. Title insurance will not insure around it.

The spouse’s joinder is a signature on the same deed, acknowledged before a notary. A spouse who signed the original lady bird deed with the owner is not excused from signing the deed to the buyer later. Every deed that conveys a homestead needs both signatures at the time of the conveyance.

If a spouse refuses to sign, the owner cannot close without the spouse’s agreement. A waiver signed under Florida’s waiver statute is enough for the devise restrictions at death, but it does not remove the joinder requirement for a sale during life. The safest practice is to confirm both spouses are on board before listing the home.

What Mistakes Do Owners Make When Selling a House With a Lady Bird Deed?

1. Revoking the deed before the sale when no revocation is needed. The sale itself exercises the power. A revocation adds paperwork and a $250 fee for no legal benefit.
2. Forgetting a new deed on the replacement home. Sale proceeds do not carry the lady bird designation. If the owner buys another home and wants the same protection, the owner needs a new lady bird deed on the new home.
3. Renting out a homestead without checking the exemption. Florida law treats renting a home for more than 30 days in two consecutive years as abandonment of the homestead exemption. An owner who rents and then sells may have lost the exemption before closing.
4. Assuming the sale proceeds stay excluded from Medicaid. The home is excluded. Cash from the sale is not. An owner who moves to a nursing home and then sells has converted an excluded asset into a countable one.
5. Letting a title agent talk the owner into having the beneficiaries sign. The owner has the power to sell alone. Involving the beneficiaries muddies the chain of title, and they may refuse or demand something in return for a signature that was never required.

Do I Need a Lawyer to Sell a House With a Lady Bird Deed?

The sale itself does not require an attorney beyond what any Florida real estate sale requires. The title company handles the closing, and the owner signs the deed to the buyer under the reserved power.

What the firm does before listing is review the recorded deed to confirm it includes the power to sell. Not every deed that calls itself a lady bird deed was drafted correctly. Hirschenson, decided by the Third District in 2023, turned on one wrong word in a paragraph. A quick read of the recorded deed catches that before it becomes a problem at closing.

After the sale, if the owner is buying another home, the firm drafts a new lady bird deed for $399 for one owner or $449 for a married couple, plus recording. The owner signs from home before a Florida online notary with two witnesses on the same video call. The firm records the deed electronically and sends the recorded copy.

If a lender insists on a revocation before a refinance, the firm handles that for $250 plus recording. The law does not require it, but some underwriting departments do, and arguing with a bank is usually slower than recording a short deed.

Frequently Asked Questions

Common Situations

A retired teacher had signed a lady bird deed naming her two children as beneficiaries. Five years later she decided to sell the house and move to a different city to be near a grandchild. At closing she signed the deed to the buyer and her children signed nothing. The title company read the recorded lady bird deed, confirmed the reserved power to sell, and insured the sale. The children learned about the closing from their mother, not from a signature page.

A man wanted to refinance his mortgage and his bank asked him to revoke the lady bird deed first. He revoked it, recorded the revocation, closed the refinance, and then a month later recorded a new lady bird deed naming the same beneficiaries. The two recordings cost more than recording a single deed would have, but the law did not require any of it. The refinance would have been valid without touching the original deed.

Sources of Law

• The reserved power: Oglesby v. Lee, 73 Fla. 39 (Fla. 1917) (the father who resold a gifted parcel; the deed "clearly contemplated and reserved to the grantor the right to sell the land"); Varano v. Varano, No. 4D2024-1571 (Fla. 4th DCA June 11, 2025) (slip; a life estate deed without the power; $281,435.35 of sale proceeds to the remainder trust); Hirschenson v. Compu-Link Corp., 389 So. 3d 574 (Fla. 3d DCA 2023) (the enhanced life estate deed signed so the mother could take a reverse mortgage; reformation of "grantor" to "grantee" affirmed). Each read in full from the corpus files under reference/caselaw/.
• Homestead joinder: Fla. Const. art. X, §4(c); Florida Uniform Title Standard 18.1. Waiver of the devise restriction: Fla. Stat. §732.7025(2) (the waiver does not reach the joinder rule) (2026).
• Property tax: Fla. Stat. §196.061 (rental of a homestead for more than 30 days in two consecutive years is an abandonment of the exemption, as amended by ch. 2026-239); §193.155(8) (portability of the Save Our Homes differential within three years). Federal income tax: IRC §121 (the $250,000 and $500,000 exclusions on a principal residence held two of the last five years); §1014 (basis at death).
• Medicaid: Florida Department of Children and Families, ESS Policy Manual §1640.0305.03 and §1640.0613.01; the homestead exclusion and the $2,000 asset limit (Appendix A-9, 2026). Estate recovery: Fla. Stat. §409.9101 (the claim reaches the probate estate; no recovery against property exempt from creditors under the Constitution).
• Advertised fees are honored for 90 days from the posted date. Government costs are additional and passed through at cost. Fees are not a prediction of outcome.

Related Guides

Florida Lady Bird Deed, Lady Bird Deed With a Mortgage, What to Do With a Lady Bird Deed After Death, Does a Lady Bird Deed Get a Step-Up in Basis?, Florida Homestead Exemption, Lady Bird Deed and Medicaid.

What I Have Seen at Closings

In 14 years of law practice, the question I hear most often from owners who have already recorded a lady bird deed is whether they can sell the home themselves. The answer is almost always yes, because the deed reserves the power to sell, and the named beneficiaries have no say. I also litigate deeds after they fail, which enhances the practice of drafting deeds.

I have a few take-home points.

The first is control. The owner of a lady bird deed keeps every right to sell, refinance, rent out or give away the property without asking anyone. That power is written into the deed itself, and it lasts until the owner dies or records a deed that changes it.

The second is that an ordinary life estate deed does not give the same control. A husband and wife in a second marriage recorded a deed on their Palm Beach County home that gave each of them a life estate, with one half of the remainder to her children and one half to a trust for his son. The deed said nothing about a power to sell. After the husband died, the widow contracted to sell, and the son’s trust sued. The trial court ordered $281,435.35 of the sale proceeds paid to the trust, and the Fourth District Court of Appeal affirmed in 2025. The court wrote, “The widow did not have a fee simple interest to sell. All that she had was a life estate. No more. No less.”

Avoid assuming that every life estate deed is a lady bird deed. Read the recorded deed, or have a lawyer read it, before listing the property.

One honest limit is that no Florida appellate court has decided whether an agent acting under a power of attorney may exercise the reserved powers in a lady bird deed.

Kevin D. Klagge, Esq., admitted in Florida since 2012. General information rather than advice on your situation.

Updated on November 12, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502.

General information about Florida law, not legal advice, and no attorney-client relationship is created. Do not send confidential information until we have agreed to represent you.