Can You Use a Lady Bird Deed If You Have a Minor Child in Florida?

Can You Use a Lady Bird Deed If You Have a Minor Child in Florida?

The Florida Constitution provides that homestead “shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child.” A surviving spouse can waive that protection by signing the deed or by a written agreement. A minor child’s protection cannot be waived by anyone.

A lady bird deed works by reserving a life estate to the owner with the power to sell, mortgage or revoke the deed entirely, and naming a remainderman who takes the home automatically at death. Florida Uniform Title Standard 6.12 addresses whether the remainderman in such a deed acquires fee simple title upon the owner’s death. The standard states the remainderman takes fee simple title only when the transfer does not violate the constitutional restriction on devise of homestead. The firm’s lady bird deed guide confirms that a surviving minor child is such a violation.

The owner’s power to divest the remainder makes the deed’s remainder the practical equivalent of a disposition at death. A 1914 Florida Supreme Court decision stated the principle that an attempted conveyance of homestead which in legal and practical effect is a will may not be effective when the owner leaves a wife or child.

At this firm, a lady bird deed on a homestead is prepared only after confirming there is no minor child. A client representation of fact is kept out of the recorded deed and in the pre-signing checklist. When the youngest child turns 18 the devise restriction no longer applies for that reason, and a lady bird deed can then be recorded, with the spouse joining and waiving if the owner is married.

What Happens to the Homestead When a Parent Dies With a Minor Child?

Florida law sets a default path for the homestead when the owner dies without a valid devise. The outcome depends on who survives.

When a spouse and one or more descendants survive, the surviving spouse takes a life estate in the homestead, with a vested remainder to the descendants per stirpes (meaning in equal shares, with a deceased child’s share passing to that child’s own children). The surviving spouse may elect, within six months after the decedent’s death and during the spouse’s lifetime, to take an undivided one-half interest in the homestead as a tenant in common. The other half vests in the descendants. Once made, the election is irrevocable.

When no spouse survives, the homestead descends to the decedent’s descendants per stirpes. All the children share equally, adults and minors alike, with a deceased child’s share going to that child’s own children.

A minor can hold title to real estate but cannot manage, sell or mortgage it. A share of a home that passes to a child under 18 is managed by a court-appointed guardian of the property, with court approval for any sale, until the child turns 18 and takes the share outright. The guardianship statute requires court authorization before a guardian may “sell, mortgage, or lease any real or personal property of the estate, including homestead property.”

Natural guardians (usually a parent) may act without court appointment when the amounts received in the aggregate do not exceed $15,000. Above that line, a legal guardianship is required. For a home that is worth more than $15,000, a court-supervised guardianship of the property governs the minor’s share until the child reaches adulthood.

A will can nominate the guardian and can hold a child’s share in trust past 18. A revocable trust can do the same. Neither changes the homestead descent rule while a minor child survives.

Why a Will or a Revocable Trust Does Not Fix It

A disposition by revocable trust counts as a devise under Florida law, and the grantor of the trust counts as the owner. The probate code defines “owner” to include “the grantor of a trust described in s. 733.707(3) that is evidenced by a written instrument which is in existence at the time of the grantor’s death as if the interest held in trust was owned by the grantor.” The term “devise” includes “a disposition by trust of that portion of the trust estate which, if titled in the name of the grantor of the trust, would be the grantor’s homestead.”

A case decided by the Third District Court of Appeal in 2012 shows how this works. A Massachusetts man put his Key Biscayne condominium, titled in his name alone, into his revocable trust in 1996. The couple later sold their Massachusetts home, which was in the wife’s name, moved into the condominium, and she used $129,895 of her sale proceeds to pay off its mortgage. He died in 2001 survived by his wife and two sons from a prior marriage. The trust gave her a life interest and the sons the remainder, with a yearly right to withdraw a slice of principal. The court held that “the constitutional provision controls.” At the moment of his death, his homestead property “passed outside of probate . . . in a twinkle of an eye, as it were, to his wife for life, and thereafter to his surviving sons.” The trustees had no power over it, and she could not be reimbursed for the mortgage she had paid off.

Even when the owner leaves everything to a spouse, the devise must be the whole fee simple when adult children survive. The Florida Supreme Court held in 1981 that where a husband left his Boca Raton condominium to his wife for life with the remainder to one of their two adult daughters, “[t]his exception is exclusive and prohibits the testator from devising less than a fee simple interest to his surviving spouse under the circumstances presented herein.” The devise failed and the home descended under the statute.

What Does Work: Ownership That Is Not a Devise

The Florida Constitution limits an attempt to devise homestead, not how a person may title property during life. The Second District Court of Appeal explained the distinction in 2011. “This language does not restrict the type of interests in real property a person may acquire or how a person may title his or her property. Instead, it restricts a person’s attempt to devise property he or she owns when homestead status has attached to that property.”

A man and his mother bought a home together as joint tenants with full right of survivorship in 1995. He had two minor children then. He died in 2008 with no spouse, two minor children and one adult child. His mother took the whole house as the surviving joint tenant. The estate’s administrator argued the house was homestead for the children’s benefit and that the joint deed was an unlawful devise. The court disagreed. “Thus, when Mr. De Rosa died, his interest in the property terminated, and it became the sole property of his mother as the surviving joint tenant without any life estate for the benefit of his children.”

Tenancy by the entirety with a spouse and joint tenancy with right of survivorship are outside the descent statute. The statute itself provides that it “does not apply to property that the decedent owned in tenancy by the entireties or in joint tenancy with rights of survivorship.”

A traditional life estate deed with no reserved powers is a completed gift, not a disposition at death. The remainder belongs to the remainderman from the moment of recording. The cost is control. The owner cannot sell, refinance or revoke without the remainderman’s consent. For Medicaid purposes, a traditional life estate is a transfer measured by the remainder’s value. Florida’s Medicaid policy treats a lady bird deed as retaining “full ownership powers,” with no transfer. A life estate deed without powers is a transfer inside the five-year look-back.

A lifetime transfer to an irrevocable trust under the inter vivos transfer statute is not a devise if the owner keeps no power to revoke or revest. The next section describes how such a trust is designed.

The Irrevocable Homestead Trust in Brief

A 2010 statute clarifies that a lifetime transfer, including one in trust, is not a devise if the owner keeps no power to revoke or revest the property. The owner may keep a retained life estate, a right of use in the trust, or even a reversion to the owner if the trust ends during the owner’s lifetime. None of those makes the transfer a devise.

A Florida Bar Journal article describes a trust designed for exactly this problem. The owner conveys the home to an irrevocable trust, keeps a life estate or right of use, and holds a lifetime limited power to appoint the home among the children or among a class that includes a non-beneficiary such as a charity (the charity is a permissible appointee used to make the trust a grantor trust, never to benefit the owner). The trust usually ends when the youngest child turns 18, and the home reverts to the owner. Until that date, the trust and not the will controls what happens to the home if the owner dies.

Stone v. Stone shows what happens when the trust terms fail to account for an early death. A husband put his half of the family home into a qualified personal residence trust in 2000. The trust ran five years; his daughter was the sole beneficiary. He died in February 2005, a month short of the term. Because the trust included a reversion to his estate if he died early, the property went back to the estate and then passed under his will to his daughter. Florida’s Fourth District Court of Appeal held that the second transfer, from the estate under the will, was a devise subject to the homestead rules. The daughter kept her interest only because the wife had waived her homestead rights when she signed the original deed in 2000.

When the Youngest Child Turns 18

The restriction lifts the moment no minor child survives the owner. When the youngest child turns 18, the owner may sign a lady bird deed naming any person. A married owner needs the spouse to join and waive the spouse’s own homestead rights, using the statutory waiver sentence in the deed.

At this firm, the consultation calendars the date the youngest child turns 18 and schedules a review. A client who signed a will and nominated a guardian when the children were small may now want a lady bird deed, a trust, or a different plan altogether. The will may still serve a purpose (naming backup beneficiaries, appointing a personal representative) or it may need updating.

Until that birthday arrives, the estate plan holds the line. The firm’s Secure Will Estate Plan nominates a guardian for minor children and holds a minor’s share in trust until 25, 30 and 35, so the child does not receive a lump sum at 18. A revocable trust can do the same. Neither solves the lady bird problem while a child is under 18, but both protect the child’s inheritance and name who manages it.

Common Mistakes

1. Recording a lady bird deed to a new spouse or to the children while a child is under 18. The deed’s remainder is the practical equivalent of a disposition at death. If a minor child survives the owner, the lady bird deed fails and the home descends under the statute instead.
2. Putting the home in a revocable trust and assuming the minor-child rule is solved. A disposition by revocable trust counts as a devise, and the grantor counts as the owner. The trust terms do not override the Constitution.
3. A will leaving the home to the spouse for life, with the remainder to one child, when adult children survive. The Florida Supreme Court held in 1981 that where a spouse and adult children survive, the devise must be a fee simple interest to the spouse. A life estate to the spouse with a remainder to one child fails.
4. A joint deed with a parent or sibling without understanding the survivor takes everything. In Marger v. De Rosa, a son and his mother bought a home as joint tenants with right of survivorship. The son died with two minor children and no spouse. Florida’s Second District Court of Appeal held the mother took the entire house as the surviving joint tenant. The minor children received nothing.
5. Leaving out the spouse’s joinder on any homestead deed. A married owner may not transfer the homestead without the spouse joining the deed, even to a trust.
6. No guardian nomination and no trust for a minor’s share. A share of a home that passes to a child under 18 is managed by a court-appointed guardian of the property, with court approval needed to sell, until the child turns 18 and takes the share outright. A will can nominate the guardian and can hold the share in trust past 18.

What It Costs

A lady bird deed at this firm is a $399 flat fee for one owner or $449 for a married couple, plus recording. That price assumes no minor child and no complicating title issue.

The Secure Will Estate Plan is $1,200, or $1,950 for a couple. The plan includes a will that names who inherits, nominates a guardian for minor children, and holds a minor’s share in trust until 25, 30 and 35. The plan also includes a durable power of attorney, a health-care surrogate designation, a living will, a HIPAA authorization, and a lady bird deed on your home (recording additional).

A revocable trust drafted alone is a flat fee from $2,400, or $3,200 for a couple. An irrevocable homestead trust, designed to pass the home outside the minor-child rule, is a flat fee quoted at the consultation. The consultation itself is 30 minutes by phone, Zoom or WhatsApp, at no cost.

Frequently Asked Questions

Common Situations

A divorced father with a 12-year-old daughter wanted his sister to receive his home if he died. His will named his sister as guardian, and he assumed a lady bird deed to her would keep the house out of probate. The consultation explained that a lady bird deed to his sister would fail as to the homestead because a minor child survived. His daughter would inherit the house under the descent statute. His sister would take nothing from the deed. He could sign a lady bird deed to his sister once his daughter turned 18.

A remarried mother with a 16-year-old son wanted her home to go to her new husband if she died. Her husband was willing to support her son. The consultation explained that a lady bird deed to her husband would fail while her son was under 18. Two options existed. She could wait two years, until her son turned 18, and then sign a lady bird deed to her husband with no restriction. She could also transfer the home now to an irrevocable homestead trust that ends when her son turns 18.

Sources of Law

• Devise restriction: Fla. Const. art. X, §4(c) ("The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner's spouse if there be no minor child."); Fla. Stat. §732.4015(1), (2) (2026) (the grantor of a revocable trust is the owner; a disposition by such a trust is a devise); §732.4017 (2026) (a lifetime transfer, including in trust, is not a devise if the transferor keeps no power to revoke or revest; enacted 2010 to clarify existing law); §732.401(1), (2), (5) (2026) (descent of homestead; the spouse's 6-month election; survivorship property excluded); §732.7025 (2026) (a spouse's waiver by deed; a minor child's protection cannot be waived).
• A minor's share: Fla. Stat. §744.301(2) (2026) (natural guardians may act without appointment when the amounts received do not exceed $15,000); §744.387(2) (a legal guardianship is required above $15,000); §744.441(12) (a guardian of the property may sell, mortgage or lease real property, including homestead, after court approval). Medicaid: Florida Department of Children and Families, ESS Program Policy Manual, §1640.0613.01 (a regular life estate is a transfer measured by the remainder interest; a lady bird deed or life estate with powers is no transfer).
• Cases, each pulled in full from CourtListener's opinion text on 2026-10-28 and read in full (files under reference/caselaw/homestead/opinions/): Marger v. De Rosa, 57 So. 3d 866 (Fla. 2d DCA 2011); Aronson v. Aronson, 81 So. 3d 515 (Fla. 3d DCA 2012) (on rehearing); Stone v. Stone, 157 So. 3d 295 (Fla. 4th DCA 2014); In re Estate of Finch, 401 So. 2d 1308 (Fla. 1981); Robbins v. Welbaum, 664 So. 2d 1 (Fla. 3d DCA 1995); Nolte v. White, 784 So. 2d 493 (Fla. 4th DCA 2001); Cutler v. Cutler, 994 So. 2d 341 (Fla. 3d DCA 2008) (en banc, on rehearing); Hubert v. Hubert, 622 So. 2d 1049 (Fla. 4th DCA 1993); Callava v. Feinberg, 864 So. 2d 429 (Fla. 3d DCA 2003); Johns v. Bowden, 68 Fla. 32, 66 So. 155 (Fla. 1914) (principle only; the scanned text is not quoted). Secondary: J. Percopo, Florida Irrevocable Grantor Homestead Trust: Having Your Cake and Eating It Too, Fla. B.J. (two parts), paraphrased and not quoted; Florida Uniform Title Standard 6.12 (The Florida Bar, RPPTL Section, 2024 edition) (guidance to title examiners, not statute). Every court quotation on this page was copied from the opinion file and checked against it; see reference/caselaw/QUOTE-DISCIPLINE.md. Statute text retrieved 2026-10-28 from the 2026 Florida Statutes.

Related Guides

Florida lady bird deeds · putting a Florida homestead in an irrevocable trust · can you leave your Florida home to anyone? · the surviving spouse's homestead rights · the spousal waiver of homestead · homestead in a revocable trust · tenancy by the entirety · life estates in Florida · Florida wills · lady bird deeds and Medicaid

What the Children’s Ages Decide Before the Deed Is Drafted

In 14 years of law practice, I have noticed that the intake form for a lady bird deed often arrives with the children’s ages left blank, and the firm asks before anything else. A child under 18 changes the outcome entirely. I also litigate deeds after they fail, which enhances the practice of drafting deeds.

I have a few take-home points.

The first is that a revocable trust does not solve the problem. The probate code treats a disposition by revocable trust as a devise, and it treats the grantor as the owner, so the same constitutional restriction applies. In Aronson v. Aronson, a Massachusetts man put his Key Biscayne condominium into his revocable trust in 1996. After the couple sold the Massachusetts home and moved to the condominium, his wife paid off $129,895 of the mortgage from her own funds. He died in 2001, survived by her and two sons from a prior marriage. The trust gave her a life interest and the sons the remainder, but the Florida Third District Court of Appeal held the Constitution controlled over the trust terms. “At the moment of Hillard’s death, his homestead property passed outside of probate,” the court wrote, “in a twinkle of an eye, as it were, to his wife for life, and thereafter to his surviving sons, James and Jonathan per stirpes.” She received a life estate and the sons received a remainder, and she could not be reimbursed for the mortgage she had paid.

The second is that ownership can accomplish what a devise cannot. A joint tenancy with right of survivorship ends at death and passes to the survivor outside the devise restrictions. A lifetime transfer to an irrevocable trust, with no power to revoke or revest, is not treated as a devise under Florida law. These arrangements have costs of their own, but they reach a result that no will or revocable trust can reach when a child is under 18.

Avoid recording a lady bird deed while a child is still a minor and assuming it will hold. If a child under 18 survives you, the deed fails as to the homestead and the home descends under the statute instead.

One honest limit is that the protection for a minor child comes from the Florida Constitution, and no deed, will or trust can take it away from a child under 18. The choice is among the lifetime arrangements that are not a devise, and each has a cost in control, taxes or flexibility. That is what the consultation is for.

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

Updated on October 28, 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.