Does Florida Allow Lady Bird Deeds?

Yes, Florida is one the five states that allow lady bird deeds.

A lady bird deed (also called an “enhanced life estate deed”) is an estate planning tool for real estate, especially your homestead. The lady bird deed can provide you with several benefits, including avoiding the probate of your home after you pass away. In addition, the lady bird deed can provide these benefits while still allowing you to have full control over your home, including the ability to live in and even sell your home. You can remove a remainderman from your lady bird deed without that remainderman’s knowledge or consent.

Although Lady Bird Deeds are not recognized in the Florida Statutes, the Florida Supreme Court held in 1917 that these deeds are permissible in Florida.[1] Additionally, in the ACCESS Florida Program Policy Manual, which explains the Florida Department of Children and Families’ interpretation of statutes and regulations, lady bird deeds are recognized as valid.[2] Furthermore, Lady Bird Deeds are recorded all the time by the clerks of court in Florida. Thus, Florida is one of only five states to recognize the Lady Bird Deed.

Unfortunately, there is little case law on Lady Bird Deeds. Thus, there is uncertainty regarding many specifics about what is allowed in a Lady Bird Deed. For example, it is unclear whether the grantor of a Lady Bird Deed may reserve the right to cancel the deed entirely without selling the property to a third party. This uncertainty can make title resulting from a lady bird deeds difficult to insure, unless the attorney drafting the deed is familiar with the standards of the title insurance underwriter. This is why I frequently look at title standards relating to lady bird deeds.

Simply put, lady bird deeds are allowed in Florida. However, if you are considering such a deed as part of an estate plan, you should consult with a Florida estate planning attorney to discuss the advantages and disadvantages of the Lady Bird Deed. Together, you and your attorney can determine what the right fit is for your estate planning needs.

[1] Oglesby v. Lee, 73 So. 840 (Fla. 1917).

[2] ESS Public Assistance Policy Manual §§ 1640.0305.03, 1640.0613.01.