Can You Put Your Florida Homestead in a Revocable Trust?

Can You Put Your Florida Homestead in a Revocable Trust?

Yes. You sign a deed from yourself to yourself as trustee, record it in the county where the home sits, and the trust holds title. Nothing in Florida law forbids it, and title companies handle these deeds every day. The mechanics are the same ones described in putting your house in a trust in Florida.

The harder question is what the trust is allowed to do with the home after you die. Florida protects a homestead from being left to the wrong person, and that protection does not care whether the house is titled in your name or in your trust. It is tested at the moment of your death, against the family you leave behind, which is why a transfer that looked clean for twenty years can fail on the one day it matters.

Practice pointer. Recording the funding deed is not the finish line, and a client who has been told otherwise is carrying a risk nobody priced. Confirm who would survive the owner before deciding whether the homestead belongs in the trust at all.

Why Florida Treats the Trust Transfer as a Devise

Two definitions do the work. Fla. Stat. §732.4015(2) provides that for purposes of the homestead devise restriction, the term “owner” includes the grantor of a revocable trust as if the interest held in trust was owned by the grantor, and the term “devise” includes a disposition by trust of the portion of the trust estate that would be the grantor’s homestead if it were titled in the grantor’s name.

Read those together and the trust disappears for this purpose. Your revocable trust holds the deed, and Florida still calls you the owner and still calls the trust’s distribution provision a devise. The restriction in subsection (1) then applies in full, which is that the homestead is not subject to devise if the owner is survived by a spouse or a minor child, except that it may be devised to the spouse when there is no minor child.

Florida does have a statute that lets a lifetime transfer escape this. Fla. Stat. §732.4017(1) says a transfer of homestead during the owner’s life, including a transfer in trust, is not a devise, but only if the transferor fails to retain a power, held in any capacity, acting alone or in conjunction with any other person, to revoke or revest that interest in the transferor. A revocable trust exists to keep exactly that power. So the carve-out is real and a revocable trust does not qualify for it.

Practice pointer. The trust being revocable is what makes the transfer a devise, so no amount of careful distribution drafting inside the trust changes the answer. What changes it is a waiver in a deed, or keeping the home out of the trust while you live.

Who Can Void the Gift, and When It Is Measured

The restriction is tiered, and every tier is tested at the moment of death rather than the day you sign.

• A surviving minor child. The devise is prohibited absolutely. The home cannot be left to anyone, and that includes your spouse. There is no waiver, no consent and no drafting route past it.
• A surviving spouse and no minor child. The home may be devised only to that spouse, unless the spouse has waived the restriction in a deed signed while you were living.
• Neither. The homestead is freely devisable and your trust controls.

When a disposition violates the restriction, it is void rather than repaired. Fla. Stat. §736.1109(1) states the consequence for trusts directly, that if a devise of homestead under a trust violates the constitutional limitations, title passes as provided in Fla. Stat. §732.401 at the moment of death. Under that section the surviving spouse takes a life estate with a vested remainder in the descendants, which is frequently the opposite of what the trust said and a structure nobody would have chosen.

The Florida Bar’s own treatise works a clean example. A single owner with one adult child and two minor children deeds the residence into a revocable trust, and the trust gives the minor children use of the home until majority and then distributes it to the adult child. The treatise’s answer is that the distribution fails and the homestead instead devolves to all three children in equal shares by intestate succession, unless both minor children have reached majority by the date of death.

Practice pointer. Ask the age of the youngest child and write the date the youngest turns eighteen into the file. A plan drafted around small children should be re-read on that date rather than left running on assumptions that expired.

The One Sentence That Fixes the Spouse Problem

Where a spouse is the obstacle, Florida supplies the cure and writes the words for you. Fla. Stat. §732.7025(1) provides that a spouse waives his or her rights as a surviving spouse with respect to the devise restrictions if the following or substantially similar language is included in a deed.

“By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse from devising the homestead property described in this deed to someone other than me.”

Three things about that sentence decide whether it works. It has to be in a deed, not in the trust and not in a separate consent form. It has to be signed during the owner’s lifetime, because no waiver of homestead rights is possible after death. And the spouse has to actually execute or join that deed.

The statute is also candid about what the sentence does not reach. Fla. Stat. §732.7025(2) provides that the waiver language may not be considered a waiver of the protection against the owner’s creditor claims during the owner’s lifetime and after death, and may not be considered a waiver of the restrictions against alienation by mortgage, sale, gift or deed without the joinder of the owner’s spouse. Your spouse still signs the next mortgage. The creditor shield is untouched.

Practice pointer. Waivers in this area fail more often than they work, and they fail in predictable ways. Joining a mortgage waives nothing beyond that mortgage, because the constitution already compelled the signature. Boilerplate purporting to waive “all rights” has been read to reach only rights in the other spouse’s property. Get the statutory sentence itself into the deed and do not improvise around it.

If the waiver belongs in a marital agreement rather than a deed, that is a different instrument and a different conversation. The two routes, and the four ways these waivers have been held void, are set out in the Florida spousal waiver of homestead rights. See also how a prenup and a postnup differ in Florida and the spousal elective share, which is the other right a marital agreement is usually written to address.

Will You Lose the Homestead Exemption or Save Our Homes?

No, and this is the part that usually worries people most and turns out to be the safest. Fla. Stat. §196.041(2) provides that a person who otherwise qualifies by the required residence is entitled to the homestead tax exemption where that person’s possessory right rests on an instrument granting him or her a beneficial interest for life, and the statute then declares that interest to be “equitable title to real estate” for purposes of the Florida Constitution.

Three protections travel with a Florida homestead and they do not all follow it into a trust the same way. The creditor exemption and the tax benefits generally survive, but the devise restriction follows the property in rather than being escaped, which is why homestead and the surviving spouse still governs who can receive it. Whether the trust is the right holder at all is the question in lady bird deed versus living trust.

A properly drafted revocable trust gives you precisely that beneficial interest for life, so the exemption survives the transfer. The Save Our Homes assessment cap in Fla. Stat. §193.155 limits the annual reassessment to the lower of three percent or the change in the consumer price index, and it rides on the exemption, so it continues too. The accrued cap is not reset by moving the house into your own revocable trust.

Two conditions carry the result. The trust language has to grant the lifetime beneficial interest rather than leave it implied, and your county property appraiser should be told about the arrangement, since that office administers the exemption and its records should reflect who holds the equitable title.

Practice pointer. The tax exemption and the devise restriction are different homesteads with different tests, and keeping them separate is the commonest correction we make. A home can sail through the exemption analysis and still fail the devise analysis on the same day.

Does the Homestead Keep Creditor Protection Inside a Trust?

The protection from forced sale comes from Article X, Section 4 of the Florida Constitution, not from the trust, and the weight of authority is that it survives the transfer. The reason this question keeps getting asked is a real decision that has never been cleanly buried.

In In re Bosonetto, 271 B.R. 403 (Bankr. M.D. Fla. 2001), a bankruptcy court held that a homestead placed in a living trust was not protected, because the constitutional exemption is available to property owned by a natural person and the trust was not one. Florida courts moved away from that reasoning. Engelke v. Estate of Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006), held that a residence held in a revocable trust was owned by a natural person and was protected from forced sale to pay estate administration expenses. Callava v. Feinberg, 864 So. 2d 429 (Fla. 3d DCA 2004), reached the protection without discussing Bosonetto at all. Two bankruptcy courts, in In re Cocke, 371 B.R. 554 (Bankr. M.D. Fla. 2007), and In re Im, 495 B.R. 46 (Bankr. M.D. Fla. 2013), allowed the exemption on trust-held residences. The Legislature then enacted Fla. Stat. §736.1109 in 2021, stating in subsection (5) that it is intended to clarify existing law and applies to decedents dying before, on or after July 1, 2021.

Here is the honest limit, and it is the Florida Bar treatise’s own assessment rather than ours. Although it appears that the holding in Bosonetto has effectively been disregarded, it has not been directly overruled. The treatise authors say they believe the case was wrongly decided and go on to tell the practitioner to review it and advise the client on the lawyer’s own reading of the law. That is a rare thing for a practice manual to say, and it is the reason the next section exists.

The Trust Clause That Strips the Protection

Fla. Stat. §736.1109(2) settled a conflict in the case law by providing that a power of sale or general direction to pay debts, expenses and claims within the trust instrument does not subject an interest in the protected homestead to the claims of the decedent’s creditors. That is the good news, and it rescues ordinary trust boilerplate.

Subsection (3) is the landmine. Where a trust directs the sale of property that would otherwise qualify as protected homestead, title remains vested in the trustee and subject to the trust. The protection that would have carried the house to your family is gone, and it is gone because of a clause a great many trusts contain without anyone thinking about the homestead. “Sell my residence and divide the proceeds among my children” is a sentence that reads like fairness and operates like a waiver.

Practice pointer. Never name the homestead in a debt-payment or abatement article, and never draft a sell-the-residence-into-residue clause for a Florida client without knowing whether the home is homestead and who will survive. This is the clause I look for first when reading a trust somebody else drafted.

Where Do I Actually Sign, and Who Has to Be There?

Clients are often confused about which document carries the homestead waiver, and ask me, "Do we put that in the trust?" No. It goes in a deed, and your spouse signs that deed with you. I have read trusts that recite a waiver in careful language and it did nothing, because the statute names the instrument and the instrument is a deed. If your spouse is joining, I want both of you at the same signing with two witnesses and a notary, and I want the statutory sentence on the page in front of you.

When We Leave the Homestead Out of the Trust

For a married Florida homeowner, our usual answer is that the homestead does not go into the trust during your lifetime. The home stays titled in your own name, and an enhanced life estate deed, which Florida practitioners call a lady bird deed, names who takes it when you die. The remainder can run to the trustee of your revocable trust, so the house still lands in the trust, still skips probate, and still passes under the terms you wrote.

What that buys you is the Bosonetto question never arising. The home is in a natural person’s name for your entire life, so the argument that troubled the 2001 bankruptcy court has nothing to attach to. You are not relying on a case having been quietly abandoned. You keep full control, you can sell or refinance or revoke without anyone’s consent, and the homestead tax exemption and the Save Our Homes cap are undisturbed because nothing about your ownership changed.

The homestead devise restriction still applies to the deed, because a lady bird remainder is itself a devise for these purposes. So a married owner leaving the home to anyone other than the spouse still needs the spouse to join the deed with the §732.7025 sentence, and a surviving minor child still blocks it. The restriction does not go away. It gets handled once, in a recorded instrument, during life, which is the only time it can be handled at all.

When the trust route is right, we say so. Several properties, out-of-state real estate, a blended family with a structured remainder, a beneficiary on needs-based benefits, or a plan that needs the house managed rather than handed over are all reasons to fund the home into the trust and draft around the restriction deliberately. Compare the two routes on a lady bird deed against a living trust, or work through the deed selector.

What Each Route Costs

Government costs are additional and passed through at cost. County recording starts at $19.20 for a deed. Posted fees are honored for 90 days. See the full flat-fee schedule.

The reason to have this done rather than filed yourself is narrow and worth stating plainly. A deed is a simple document, and Florida lets you prepare and record your own. What you are buying is somebody confirming who would survive you, whether the home is homestead, whether the spouse has to join, whether the statutory sentence belongs in this deed, and whether the trust you already own contains the sell-the-residence clause. Those five questions are where these transfers fail, and none of them are visible on the face of the deed.

Frequently Asked Questions

Common Situations

The trust that could not give the house away. A Naples man with two children from a first marriage remarried and funded his homestead into a revocable trust that left the home to his children. He assumed the trust settled it. Because his wife survived him and had never signed a waiver in any deed, the trust’s disposition was a devise the restriction did not allow, and the house descended by statute to his wife for life with the remainder to his children. Both sides got something neither had planned for and the estate spent a year sorting it out.

The clause nobody read. A Sarasota widow brought in a trust drafted elsewhere that directed the trustee to sell the residence and divide the proceeds equally. The instruction was fair and it was also the one structure that puts the homestead outside the protection, because a direction to sell keeps title in the trustee under Fla. Stat. §736.1109(3). Restating the trust to distribute the home in kind, with the sale left to the beneficiaries afterward, preserved the protection and changed nothing about who got what.

The couple who kept the house out. A Venice couple came in for a trust after a seminar told them the homestead had to be funded. They owned one Florida home headed to two adult daughters. We drafted the trust for the rest of the plan and used a $449 joint lady bird deed on the house, with the remainder running to the trustee. The home stayed in their names while they lived, the trust receives it at the second death, and nobody has to litigate a 2001 bankruptcy case to find out whether the house was protected.

Sources of Law

• Fla. Const. Art. X §4(a) to (c) (homestead exemption from forced sale; the devise and alienation restrictions; spousal joinder).
• Fla. Stat. §732.4015(1) and (2)(a) to (b) (devise of homestead; “owner” includes the grantor of a Fla. Stat. §733.707(3) trust; “devise” includes a disposition by trust). Retrieved 2026-09-14.
• Fla. Stat. §732.4017(1) to (2) (an inter vivos transfer, including a transfer in trust, is not a devise only where the transferor retains no power to revoke or revest the interest). Retrieved 2026-09-14.
• Fla. Stat. §732.7025(1) to (2) (waiver of homestead rights through deed; the statutory sentence, and the two things it does not waive). History, s. 1, ch. 2018-22. Retrieved 2026-09-14.
• Fla. Stat. §736.1109 (annotated)(1) to (5) (testamentary and revocable trusts, homestead protections; subsection (2) on a power of sale, subsection (3) on a direction to sell, subsection (5) retroactivity). History, s. 12, ch. 2021-183. Retrieved 2026-09-14.
• Fla. Stat. §732.401 (descent of homestead when a devise fails; spouse takes a life estate with a vested remainder in the descendants).
• Fla. Stat. §196.041(2) (a beneficial interest for life is declared “equitable title to real estate” for the homestead tax exemption), quoted from flsenate.gov, retrieved 2026-09-14; Fla. Stat. §193.155(1) (Save Our Homes, annual reassessment capped at the lower of three percent or the change in the consumer price index).
• In re Bosonetto, 271 B.R. 403 (Bankr. M.D. Fla. 2001) (homestead in a living trust held not owned by a natural person); Engelke v. Estate of Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006); Callava v. Feinberg, 864 So. 2d 429 (Fla. 3d DCA 2004); In re Cocke, 371 B.R. 554 (Bankr. M.D. Fla. 2007); In re Im, 495 B.R. 46 (Bankr. M.D. Fla. 2013). Federal bankruptcy decisions construing Florida law are persuasive, not binding, on Florida courts.
• Basic Estate Planning in Florida (The Florida Bar, 2024) §6.5.F.1.b to .d and §8.13, for the treatise’s assessment that Bosonetto has effectively been disregarded but not directly overruled, and for the worked minor-children example.
• Advertised fees are honored for 90 days from the posted date. Government costs, meaning recording, documentary stamps and certified copies, are additional and passed through at cost. Fees are not a prediction of outcome.

What I See in These Files

In 14 years of law practice I have found the homestead question already answered wrongly by the time most families reach me. I also litigate deeds after they fail, which enhances the practice of drafting deeds, and I see the same three failures over and over. A funded homestead, a surviving spouse, and no waiver anywhere in my chain of title. A sell-the-residence clause I find buried in an otherwise careful trust. A deed where the spouse signed as a witness instead of joining as an owner, which I have to explain is not the same signature at all.

When I read a trust somebody else drafted, the homestead article is the first thing I turn to, and I am usually looking for what is not there. My own view is that the reason this asset deserves its own decision is simple. It is the one thing Florida will re-route after your death no matter what your documents say. Avoid signing a funding deed on a Florida homestead before someone has established who would survive you and whether a waiver exists in a recorded instrument. I would rather spend twenty minutes on that at the front than argue it later.

Updated on September 14, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. General information about Florida law and our posted fees, not legal advice, and no attorney-client relationship is created. The right plan depends on your specific facts, which we confirm at a free consult.