What Went Wrong is our series on real, published cases. Each entry follows what the documents said, what the court did, and what it teaches. Every quotation comes from the court’s own opinion or from the recorded deed in the public record. These are other parties’ cases, not our clients, and they predict nothing about any reader’s situation.
On September 23, 2026 the Fourth District Court of Appeal decided a lady bird deed case out of Broward County, and the holding is procedural. The appellate court did not decide who gets the condo. What makes the case worth a column is the deed, which is a public record and which I pulled. It shows two gaps that a lady bird deed should never have, and the second marriage that turned those gaps into a lawsuit.
The setup
In June 2021 a married woman in Lauderhill signed a deed on a townhouse condominium. The deed is titled a remainder deed. It names her as grantor, “joined by her husband,” and it gives a life estate back to her alone, with the usual lady bird powers to sell, convey, mortgage, lease and otherwise dispose of the property “without joinder of the remaindermen.” Then it says that upon termination of her life estate “the remainder if any, shall pass to” a named man, described as a married man, at a Plantation address.
Read it again from the husband’s side. He signed, but the deed gives him nothing. His signature is spousal joinder, the signature Florida requires on a homestead conveyance, and that is all it is. The life estate belongs to his wife. When her life estate ends, the remainder passes. There is no life estate for him after her death, no power for him to sell or to change the beneficiary, and no provision at all for the survivor of the two.
The deed also lacks the clause that makes a lady bird deed a lady bird deed. It reserves the power to sell and to keep the proceeds, which is the ordinary enhanced life estate language, but it never reserves the power to revoke the deed, to cancel the remainder, or to name a different beneficiary. The Florida Bar’s Uniform Title Standards treat an express divestment of the remainder as the feature that separates an enhanced life estate from an ordinary one. This deed says the remainder passes “if any,” which gestures at the idea without doing it.
Then life happened in the order the deed did not plan for. The wife died. The husband remarried. The husband died shortly after that.
The fight
The second wife petitioned the probate court to declare the condo her late husband’s homestead, which would give her the rights Florida’s constitution gives a surviving spouse. Her petition said the property had been his domicile and that he owned it in fee simple when he died. It mentioned the deed in a footnote and did not attach it.
The remainder beneficiary moved to dismiss, and his argument was the deed. On his reading the husband held, at most, a life estate when he married the second wife, and nothing at all by the time he died, so there was no fee simple homestead for a widow to claim. The trial court agreed and dismissed the petition.
The Fourth District reversed, and the reason has nothing to do with lady bird deeds. A motion to dismiss tests the petition on its face. The trial court had reached outside the petition to a deed that was never attached to it, decided what estate the husband kept, and ruled on the merits in a proceeding built to test pleadings. The appellate court sent the case back and was careful about what it was not deciding: “We express no view on the ultimate merits of the homestead claim or the legal effect of the deed.”
So the question everyone wants answered, whether a lady bird deed signed before a marriage leaves the later spouse any homestead claim, is still open. It goes back to a Broward courtroom for a proper hearing. We will report what happens.
What it teaches
A deed that is missing one clause can undo an estate plan. This deed carries the power to sell but not the power to revoke or to change the beneficiary. Without that clause, the remainder passed on the wife’s death and the husband, who was still alive and still living there as far as the record shows, had no way to redirect the condo. The standard clause is one sentence. Its absence is now the subject of an appeal and a remand.
The deed provided for one life and the family had two. A married couple’s lady bird deed should give the life estate to both spouses and to the survivor of them, with the reserved powers in whichever of them is left. This one gave the life estate to the wife alone and had her husband sign as a bystander. The widow in a 2025 Fourth District case lost the power to sell her own home for the same reason, because the deed she and her husband signed said nothing about the survivor. Two cases in two years from the same court, both about what a joint deed forgot to say.
Update your documents when you remarry, and update them the same month. Every estate document the husband had was drafted for a marriage that had ended. A new deed, signed with the second wife joining, would have put her position in writing before the question ever reached a judge. The time between his second wedding and his death was short. The time it takes to sign a new deed is an afternoon.
Do not write identities into a deed that a later event can make wrong. This deed describes the grantor as a married woman and the beneficiary as a married man, and it is organized around one named person’s life. Marital status is a snapshot, and a deed lives for decades. Name people by their full names and their roles, life tenant and remainder beneficiary, provide for the survivor, name a substitute beneficiary, and reserve the power to change the whole arrangement. A deed drafted that way reads correctly whether the owner later marries, divorces, is widowed, or outlives a beneficiary.
Avoid signing a deed because it has the words “life estate” and “remainder” on it. Those words appear on an ordinary life estate deed too, and an ordinary life estate deed is the one instrument that locks an owner in.
Our lady bird deeds give the life estate to both spouses and the survivor, reserve the express power to revoke and to divest, name a contingent beneficiary, and are reviewed again when a client’s family changes. The fee is $399 for one owner and $449 for two, plus recording, which is less than the first hour of the appeal described above.
The case. Cynthia McFarlane v. Dale V.C. Holness, as personal representative of the Estate of Delroy Junior McFarlane, No. 4D2025-2750 (Fla. 4th DCA Sept. 23, 2026). The quotations are from the court’s slip opinion and from the deed recorded in the Broward County official records and filed as an exhibit in the trial court on April 24, 2025. The parties and the preparer of the deed are not clients of this firm, the appellate court decided only the procedural question, and every case turns on its own facts.
Related Guides
- Florida lady bird deed guide
- Can a lady bird deed be contested?
- What a valid lady bird deed form must contain
- Lady bird deed with multiple beneficiaries
- Lady bird deed states, the chart
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. This article is general information about Florida law, not legal advice, and does not create an attorney-client relationship.
