The house is different, and the trust does not change that
Florida homestead is protected by the state constitution, and the protection does not care that the property was put into a trust. This section, added in 2021, states how the two systems meet.
If a devise of homestead under a trust violates the limitations on the devise of homestead in s. 4(c), Art. X of the State Constitution, title shall pass as provided in s. 732.401 at the moment of death.
Section 736.1109(1), Florida Statutes.
Read at the moment of death. There is no gap in which anyone decides anything. If the devise is bad, title has already gone where the constitution and section 732.401 send it, which is generally a life estate to the surviving spouse with a remainder to the descendants, or a half interest if the spouse elects.
The Fourth District put the vesting point plainly in 2023, citing this subsection alongside earlier authority, and stated the consequence in a sentence worth memorising.
any devise of homestead property that does not grant a fee simple interest to a surviving spouse fails, regardless of intent.
Stirberg v. Fein (Fla. 4th DCA Mar. 15, 2023).
Regardless of intent. That is a rare phrase in trust law, where intent usually decides everything, and it tells you how much of an outlier the homestead rules are.
And you cannot fix it afterwards
The natural response is to ask a court to reform the trust. Our page on section 736.0415 covers reformation, which in Florida can rewrite even a clear trust to conform to what the settlor actually intended.
It does not work here. The same 2023 decision holds that reformation is a retroactive action, and it goes further.
Not even a retroactive action can validly cure a devise violating the homestead laws.
Stirberg v. Fein, quoting the principle that a non-compliant alienation of homestead is void ab initio and subsequent events will not breathe life into it.
The reasoning runs through older authority holding that where the constitutional and statutory requirements are not complied with, the attempt is a nullity and void from the beginning. Something void from the beginning cannot be repaired later, because there is nothing there to repair.
The practical consequence is that this has to be got right while the owner is alive. After death, the usual toolkit of reformation, modification and nonjudicial settlement does not reach it.
The protective half of the section
Subsection (2) works in the homeowner’s favour, and it closes an argument creditors used to make.
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 decedent’s creditors, expenses of administration, and obligations of the decedent’s estate as provided in s. 736.05053.
Section 736.1109(2), Florida Statutes.
Many trusts contain boilerplate directing the trustee to pay the settlor’s debts and expenses. The argument was that such a direction voluntarily submitted the homestead to those claims. This subsection says it does not.
The Fifth District applied that in 2022, holding that a general directive in a testamentary trust instrument to pay debts, claims or expenses does not subject protected homestead to estate obligations or administrative estate expenses. On the facts, escrowed proceeds from the sale of the homestead could not be used for the estate’s administrative fees and costs.
Read it with section 736.05053, which is the section imposing the duty to pay estate obligations. Protected homestead sits outside it.
One limit on how we use that decision. The court included a footnote saying it did not determine whether a trust’s beneficiary is entitled to constitutional homestead protections as an heir, and that its decision should not be cited for that proposition. We take the court at its word, and so should anyone else.
Who and what the section covers
Subsection (4) limits it to trusts described in section 733.707(3), which are revocable trusts, and to testamentary trusts. An irrevocable trust funded during life is a different analysis, and homestead status usually will not survive the transfer at all.
Subsection (3) handles the other direction. Where a trust directs a sale of property that would otherwise qualify as protected homestead, but the constitutional limitations do not apply to it, title remains vested in the trustee and the trust governs. The constitutional limits bite only where there is a surviving spouse or minor child.
It was written to apply backwards
This section is intended to clarify existing law and applies to the administration of trusts and estates of decedents who die before, on, or after July 1, 2021.
Section 736.1109(5), Florida Statutes.
That is unusual drafting and it is deliberate. By characterising the section as clarifying rather than changing the law, the Legislature gave it reach over deaths that had already happened.
Most sections of Part XI carry their own dates and several are prospective only. This one is not, and if you are dealing with an older estate it is the section to check first.