Is Florida a Community Property State?
No. Florida is an equitable distribution state and always has been.
In a community property state, most of what either spouse acquires during the marriage is owned half and half from the moment it is acquired, regardless of whose name is on it or who earned it. Florida does not work that way. Property here is classified as marital or nonmarital, and on a divorce a court divides the marital portion in a way it considers fair.
People also search for whether Florida is a marital property state, which is a different phrase for a different idea. Florida does distinguish marital from nonmarital property. That is not the community property system.
What Florida Uses Instead
Equitable distribution means fair rather than automatically equal. A Florida court begins from the premise that an equal split is appropriate and can move away from it based on the circumstances of the marriage.
Separately, Florida keeps certain property outside the marital pot altogether. Fla. Stat. §61.075(6)(b) places assets acquired by gift, bequest, devise or descent in the nonmarital category. So an inheritance a spouse receives does not start out as marital property.
That protection is easier to lose than to understand. Depositing an inheritance into a joint account, or running marital earnings through an inherited account, can convert it. Classification follows how the money was handled, not where it came from. There is more on that at protecting your child’s inheritance.
Practice pointer. When a client tells me an inheritance is "theirs," I ask which account it landed in before I agree. That single question resolves the issue more often than any document I could draft afterward.
Why People Ask This Question at All
Almost nobody asks me this because of a divorce. They ask because somebody mentioned a tax benefit, usually a relative who moved from California or Texas and got an outcome their Florida friends did not.
The benefit is real and it sits in the Internal Revenue Code. Under IRC §1014(b)(6), property representing the surviving spouse’s one-half share of community property receives a basis adjustment at the first death, provided at least one-half of the community interest was includible in the decedent’s gross estate. Both halves step up, not one.
Compare that to ordinary Florida ownership between spouses, where a home held as tenants by the entireties produces a new basis on only half at the first death, and the survivor carries their original basis on the rest. On a house bought in 1998 and sold by a widow in 2027, the difference between one half and both halves is frequently six figures of taxable gain. That is the entire reason this question has money behind it, and it is covered on the step-up in basis page.
What Is the Difference Between This and Just Owning It Jointly?
A common question I hear is, "What is the difference between a community property trust and just owning the house together?" My answer is one number, and it is the basis at the first death. Owning jointly as a Florida married couple gets the survivor a new basis on half. Community property treatment gets it on both halves. Everything else about the two arrangements is close enough that I do not lead with it, because the tax result is what people are actually buying.
The Florida Community Property Trust Act
Effective July 1, 2021, Florida enacted what Fla. Stat. §736.1501 calls the “Community Property Trust Act.” It lets a married couple opt into community property treatment for property they choose to place in a qualifying trust.
Florida is not a community property state, and two Florida tools borrow the idea deliberately. The Florida community property trust exists to capture the double step-up in basis that community property states get automatically. A couple who wants to fix their property rights by agreement instead uses a prenuptial agreement or the postnuptial version in prenup versus postnup.
Be precise about what that did and did not do. Florida did not become a community property state. Couples who do nothing stay under equitable distribution exactly as before. Only property deliberately transferred into a qualifying trust is treated as community property, and only from the point the couple does it.
Fla. Stat. §736.1502(1) defines community property for this purpose as the property, and the appreciation of and income from the property, owned by a qualified trustee of a community property trust during the marriage of the settlor spouses. Fla. Stat. §736.1502(2) limits the definition of a community property trust to one created, amended, restated or modified on or after July 1, 2021.
Practice pointer. I read the "did Florida become a community property state" headline at least once a year in something a client brings me, and it is wrong every time. Nothing happened to your marriage in 2021. A new tool appeared, and you have to pick it up deliberately.
Find out whether the double step-up is worth it for you
We look at what your assets actually cost you, what they are worth now, and whether the basis benefit justifies the trade-offs. If it does not, we will say so.
What the Statute Actually Requires
Fla. Stat. §736.1503 sets four conditions. An arrangement is a community property trust if one or both settlor spouses transfer property to a trust that:
- Expressly declares that the trust is a community property trust within the meaning of the part.
- Has at least one qualified trustee, provided that both spouses or either spouse also may be a trustee.
- Is signed by both settlor spouses, consistent with the formalities required for executing a trust under chapter 736.
- Contains substantially the statutory warning language, in capital letters, at the beginning of the agreement.
That fourth requirement is unusual and it is worth taking at face value. The Legislature wrote a warning into the statute telling you the consequences may be very extensive, covering your rights against creditors and third parties, your rights with your spouse during the marriage, at a divorce, and on either death. It says the agreement should be signed only after careful consideration, and that although not a requirement, it is strongly advisable that each spouse obtain their own separate legal counsel before signing.
On the trustee, Fla. Stat. §736.1502(6) defines a qualified trustee as either a natural person who is a resident of Florida, or a company authorized to act as a trustee in Florida. A Florida couple can generally serve as their own trustees. A couple with one foot in another state needs at least one qualified Florida trustee in place, which is the residency question people search for and rarely find answered.
Practice pointer. I take the statutory warning seriously enough that I raise separate counsel with couples rather than wait to be asked. The Legislature put that sentence in the statute for a reason, and a trust signed without it having been discussed is a trust I would not want to defend later.
What Happens When the First Spouse Dies
Fla. Stat. §736.1507 splits the trust cleanly and then says something most summaries leave out.
Upon the death of a spouse, one-half of the aggregate value of the property held in the trust reflects the share of the surviving spouse, and that half is not subject to testamentary disposition by the decedent spouse or to distribution under the laws of succession. The other one-half reflects the decedent’s share and is subject to testamentary disposition or to succession.
The trustee has power to distribute assets in divided or undivided interests and to adjust resulting differences in valuation, unless the agreement provides otherwise, and a distribution in kind may be made on a non-pro rata basis, a pro rata basis, or both.
Then the closing sentence. The decedent spouse’s one-half share is not included in the elective estate. That interacts directly with Florida’s elective share, which is the claim a surviving spouse can otherwise make against a deceased spouse’s estate, and it is a consequence worth understanding before you sign rather than after. See the Florida elective share.
When It Is Worth Doing, and When It Is Not
The case for it is narrow and strong. You have assets carrying substantial unrealized gain, most often a long-held Florida home or a concentrated stock position, you expect the survivor to sell after the first death, and you are both comfortable converting separate property into a shared classification.
The case against it is equally real. You are giving up the flexibility that separate property gives you, including in a dissolution, and the statute’s own warning tells you the consequences reach your rights against creditors and third parties. A couple whose assets have little built-in gain is paying for an arrangement that buys them nothing.
The detailed mechanics of the trust itself, including the double step-up and the holding-period questions, are on the Florida community property trust.
Frequently Asked Questions
Is Florida a Community Property State?
No. Florida is an equitable distribution state. Property acquired during a marriage is not automatically owned half and half, and on a divorce a Florida court divides marital assets and liabilities in a way it considers fair, beginning from a premise of equal division but able to depart from it. Only a minority of states use the community property system, and Florida is not among them. What Florida does have, since July 1, 2021, is a voluntary way to obtain community property treatment for particular assets through a community property trust.
Is Florida a Marital Property State?
Yes, in the sense that Florida distinguishes marital from nonmarital property, but that is not the same as being a community property state. Florida classifies assets as marital or nonmarital and then divides the marital ones equitably on a dissolution. Community property states instead treat most property acquired during the marriage as owned equally from the moment it is acquired. The labels get used interchangeably in ordinary speech and they describe two different systems.
Is Florida a Community Property State at Death?
Not by default. At a death, Florida applies its own rules on the elective share, homestead and intestate succession rather than a community property regime. The exception is property the couple deliberately placed in a Florida community property trust. Under Fla. Stat. §736.1507, upon the death of a spouse one-half of the aggregate value of the property held in that trust reflects the surviving spouse’s share and is not subject to testamentary disposition by the decedent spouse, while the other half is.
Did Florida Become a Community Property State in 2021?
No, and this is the most common misunderstanding about the law. The Community Property Trust Act, effective July 1, 2021, did not change Florida’s marital property system. It created an opt-in trust. Couples who do nothing remain under equitable distribution exactly as before. Only property that a married couple deliberately transfers into a qualifying community property trust is treated as community property, and only from the point they do it.
Why Would a Florida Couple Want Community Property?
For a basis advantage at the first death. Under IRC §1014(b)(6), where property is community property and at least half of it was includible in the deceased spouse’s gross estate, the surviving spouse’s one-half share receives a basis adjustment as well as the decedent’s. Ordinary Florida ownership between spouses produces a new basis on only half. On a long-held home or a concentrated stock position, that difference can eliminate a very large capital gain when the survivor later sells.
Who Can Be the Trustee of a Florida Community Property Trust?
The trust must have at least one qualified trustee, and Fla. Stat. §736.1502(6) defines that as either a natural person who is a resident of Florida, or a company authorized to act as a trustee in Florida. The statute adds that both spouses, or either spouse, may also serve as a trustee. So a Florida couple can generally serve as their own trustees, and a couple with a connection to another state needs at least one qualified Florida trustee in place.
Is Inheritance Marital Property in Florida?
It starts out nonmarital. Fla. Stat. §61.075(6)(b) places assets acquired by gift, bequest, devise or descent outside the marital estate. The protection is easy to lose in practice, because depositing an inheritance into a joint account or running marital earnings through an inherited account can convert it. The classification is about how the money is handled rather than where it came from, which is why keeping an inheritance separately titled matters more than most people are told.
What Does a Florida Community Property Trust Cost?
We quote it at the consult rather than posting a flat figure, because it is drafted alongside the rest of a plan and the analysis is specific to your assets. The threshold question is not price. It is whether your assets carry enough unrealized gain to make the basis advantage worth the trade-offs, and whether both of you are comfortable with what the arrangement does to your separate property. If the answer to either is no, we will tell you so rather than draft it.
Common Situations
The couple from California. A pair who retired to Naples assumed their community property character followed them across the state line automatically. It does not work that way for property acquired after the move, and the counterfactual matters here, because a community property trust created deliberately would have preserved the treatment they thought they already had.
The headline that said Florida changed. A client brought me an article saying Florida had become a community property state in 2021. It had not. What existed was an opt-in trust they had never signed, so nothing about their ownership had changed in five years, and the step-up they believed they were getting was half of what they expected.
The inheritance in the joint account. A widow in Ormond Beach received an inheritance during her marriage and deposited it into the account the couple used for everything. Under §61.075(6)(b) it began as nonmarital. By the time it mattered it was not, and no document signed afterward could unwind the commingling.
Sources of Law
- Fla. Stat. §736.1501 (annotated) (short title, the “Community Property Trust Act”); §736.1502 (annotated)(1) (definition of community property under the part); §736.1502(2) (a community property trust must be created, amended, restated or modified on or after July 1, 2021); §736.1502(6)(a) to (b) (a qualified trustee is a natural person resident in Florida or a company authorized to act as trustee in Florida). History, s. 31, ch. 2021-183. Retrieved 2026-09-14.
- Fla. Stat. §736.1503 (annotated)(1) to (4) (the four requirements, including the statutory warning in capital letters at the beginning of the agreement and its recommendation of separate counsel for each spouse).
- Fla. Stat. §736.1507 (annotated) (on the death of a spouse, one-half reflects the survivor’s share and is not subject to testamentary disposition, the other half is; trustee distribution powers; and the decedent spouse’s one-half share is not included in the elective estate).
- Fla. Stat. §61.075(6)(b) (assets acquired by gift, bequest, devise or descent are nonmarital), retrieved 2026-08-26.
- IRC §1014(b)(6) (the surviving spouse’s one-half share of community property receives a basis adjustment where at least one-half of the community interest was includible in the decedent’s gross estate), text from Cornell Law School LII, fetched 2026-06-08.
- ⚠ This page states general Florida law and federal tax rules, not legal or tax advice. Whether a community property trust suits your assets depends on your basis, your goals and your marriage, and the statute itself recommends that each spouse obtain separate counsel before signing one.
- 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.
What I See in These Files
In 14 years of law practice this is the question I am asked most often by people who have just moved here, and almost never for the reason they think. They frame it as a property question and what they want is a tax answer. I would rather give them the tax answer first, because once someone understands that both halves can step up instead of one, the rest of the conversation gets much shorter.
I also see the opposite mistake, which is a couple signing a community property trust because they read that it saves tax, without anyone asking what their basis actually is. If your assets carry little unrealized gain, I am charging you for a document that buys you nothing and costs you flexibility. Avoid electing community property treatment before someone has put your purchase prices and your current values side by side, and avoid assuming that community property character from another state followed you to Florida on its own.
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 federal tax rules, not legal or tax advice, and no attorney-client relationship is created. Whether this fits your situation depends on your specific facts, which we confirm at a free consult.
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