Why a Lady Bird Deed Fails With a Minor Child in Florida

A lady bird deed named a sister, but the owner left a minor child behind. Florida Statute 732.401 voided the deed and the child inherited instead.

Transcript

The deed was recorded and it was drafted well. Two subscribing witnesses, a notary, the full legal description pulled off the prior warranty deed instead of off the tax bill. It was a lady bird deed, an enhanced life estate deed, and it left the house to the owner’s sister, because the sister was the one who was going to raise his daughter after he was gone. He died four years later. The daughter was twelve. The deed did nothing at all.

The house did not go to the sister. It descended under Florida Statute section 732.401, and a twelve year old ended up owning a house in Marion County. Nobody could sell it, nobody could refinance it, and nobody could give a buyer clean title without opening a guardianship of the property and getting a judge to sign off on the sale. The sister, who was feeding and housing the child, got the property tax bill and the insurance bill on a house she did not own.

Why did a deed that was drafted right and recorded right leave a twelve year old holding a house nobody could sell? Three things settle it. The first is why a lady bird deed loses to the homestead devise restriction when a spouse or a minor child survives you. The second is the one instrument that gets around it, and what it costs in tax. The third is the single mistake that can undo it after it’s set up right.

Article X, section 4(c) of the Florida Constitution is what did that. It says the homestead shall not be subject to devise if the owner is survived by a spouse or a minor child. Section 732.4015 says the same thing in the statute book. There is exactly one exception written into both of them, and it is a devise to your own spouse when you have no minor child. Everything else fails, and when the devise fails the house descends the way the constitution says it descends, which is a life estate to the spouse with a vested remainder to the descendants, or the whole thing to the descendants if there is no spouse.

A spouse can waive this. Since July 1, 2018 there has been a safe harbor sentence in section 732.7025 that a spouse signs right in the deed, and it waives the devise restriction. It waives nothing else, so it does not touch the elective share and it does not touch homestead creditor protection, but it does the job it was written for.

A minor child cannot waive it, and this is the part clients do not believe when I tell them. A minor has no capacity to sign it away. A parent cannot sign it away for the child. A guardian cannot. A judge cannot. There is no form, no petition and no consent that removes it. It sits on the house until the youngest child turns eighteen, and while it sits there it beats any deed and any will you sign.

The lady bird deed loses to it for a reason the Florida Supreme Court gave in 1914 in Johns versus Bowden. The court said that if an attempted conveyance of homestead real estate is in legal and practical effect and operation a will, it may not be effective when the owner leaves a wife or a child. A lady bird deed keeps every single power in your hands. You can sell, mortgage, revoke it, and name somebody else tomorrow, all without asking the person named in the deed. Florida’s own Department of Revenue said as much in a technical assistance advisement in October 2020, when it ruled that a lady bird deed owes no documentary stamp tax because it does not transfer any present beneficial interest in real property. That is the whole problem in one sentence. Nothing moved while you were alive, so the transfer happens at your death, and a transfer at your death is a devise.

Joseph Percopo, who wrote the Florida Bar Journal articles that practitioners rely on here, states the rule about as flatly as it can be stated. Lady bird deeds appear to be subject to the devise restriction and generally should not be used by a party with a spouse or a minor child, unless there is no minor child and the deed leaves the home entirely to the surviving spouse.

Section 732.4017 is the way out, and it has been on the books since 2010. It says that if the owner of homestead property transfers an interest in that property during life, including a transfer in trust, with or without consideration, the transfer is not a devise, so long as the transferor does not retain a power, held in any capacity, acting alone or together with anyone else, to revoke or revest that interest. Subsection three then says you can keep a life estate, a term of years, a reversion, or a fractional interest, and the interest you transferred does not have to become possessory until the day you die. It is still not a devise.

The instrument that does this is an irrevocable trust funded with the homestead during your lifetime, and Florida practitioners call it a FIGHT, a Florida irrevocable grantor homestead trust. You sign the trust first, then you deed the house to the trustee of that trust and you keep a life estate in the deed itself. If you are married, your spouse joins that deed, because the spousal joinder requirement for a lifetime conveyance is a separate rule from the devise restriction and it applies no matter what.

You do not lose the tax benefits by doing this. Section 196.041(2) declares that a possessory right based on an instrument granting a beneficial interest for life is equitable title to real estate, so the homestead exemption and the three percent Save Our Homes cap keep running. The property appraiser fought that exact point in Robbins versus Welbaum and again in Nolte versus White, on transfers to personal residence trusts, and lost both times. Documentary stamp tax is nothing if the house is unencumbered and you take no consideration. If there is a mortgage, the worst case is small. On a house with a million dollar mortgage and a forty year old owner, the remainder interest is 8.4 percent under the Florida table, which puts $84,000 of that mortgage at risk of the tax, and the tax on that is $588.

The mistake to avoid inside the trust is the one that sank Stone versus Stone in the Fourth District in 2014. The husband and wife each put a half interest into a personal residence trust. The husband died before his five year term ran out, and under the trust terms his half went back to his estate and passed under his pour over will. The court held the devise restriction applied, because the disposition happened through the will and not under the terms of the trust. The court also said that if he had survived the term, the transfer to the daughter would have been fine. So the trust has to control the disposition on the day you die. No reversion to the estate, no pour over, a fixed waterfall written into the trust.

This week, pull the recorded deed on your house and read who is actually named on it. Then answer two questions. First, is there anyone under eighteen in your family who would survive you. Second, if you are married, did your spouse sign that deed. If the answer to the first question is yes and the deed leaves the house to anybody other than the constitutional default, the deed is not going to do what you paid for it to do, and the person you were trying to protect is the one who finds out.

Then fix it in order. Confirm the property is homestead and how much of it is, because inside a municipality the protection covers half an acre and outside one it covers 160 acres. Confirm marital status. Confirm minor children. Then pick the instrument, and pick only one for that parcel, because a lady bird deed and a deed to a trust and a will that all speak to the same house is a probate case waiting to happen. I draft the trust and the funding deed together when there is a minor child in the picture, and the trust is written to hand the house back to you outright once your youngest turns eighteen.

Read the full guide at stepuplaw.com/florida-lady-bird-trust

Related reading and listening at StepUpLaw

• Lady Bird Deed With a Mortgage in Florida: Does It Work?
• Florida Lady Bird Deed Tax Consequences (2026)
• Florida Homestead Exemption: How Long Must You Live Here?
• Episode 2, A Florida Homestead Deed Fails Without Your Spouse’s Signature
• Episode 4, Lady Bird Deed or Living Trust for a Florida Home
• Episode 1, What a Florida Lady Bird Deed Actually Does

Related guides

• Lady Bird Deed With a Mortgage in Florida: Does It Work?
• Florida Lady Bird Deed Tax Consequences (2026)
• Florida Homestead Exemption: How Long Must You Live Here?

Stepping Up is hosted 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. Episodes are general information about Florida law, not legal advice, and listening does not create an attorney-client relationship.