Avoiding common Florida estate planning mistakes means accounting for the state’s unusual homestead protections, its mandatory spousal elective share, and the gap between the document you signed up north and the way Florida law actually reads it. The errors that hurt families here are rarely exotic. They are ordinary plans — a valid New York or New Jersey will, a revocable trust, a deed naming the kids — that quietly collide with Florida statutes the moment a snowbird or part-year resident dies owning property in the state.
I have probated estates for dozens of dual-state families, and the pattern repeats. The plan looked finished. Nobody updated it for Florida. Below are the mistakes I see most often, why they happen, and what to do instead.
Assuming Your Out-of-State Will Automatically Works in Florida
A will validly executed in your home state is generally honored in Florida. Under Florida Statute § 732.502(2), a will executed by a nonresident is valid here if it was valid under the laws of the state where it was signed — with two sharp exceptions. Florida does not recognize holographic wills (unwitnessed handwritten wills) or nuncupative wills (oral wills), even if your prior state did.
So the document may be admissible. That is not the same as being easy to admit. Here is the practical problem:
- If your will is not self-proved under § 732.503, the Florida court may require a witness to provide an oath before it accepts the will. Tracking down a witness who signed in Albany fifteen years ago is, charitably, a headache.
- A will valid only because it met your home state’s relaxed signing rules can invite a challenge in Florida, where the formalities under § 732.502(1) are strict: signed at the end by the testator, in the presence of two attesting witnesses, who each sign in the presence of the testator and of each other.
If you have become a Florida resident — or spend enough of the year here that Florida is arguably your domicile — the cleanest move is to execute a fresh Florida will and self-proving affidavit. Do not rely on a stale out-of-state document to carry the day in a Florida courtroom. For a plain-English overview of what a compliant document looks like, see our page on Florida wills.
Misunderstanding Florida’s Homestead Devise Restriction
This is the single most expensive mistake out-of-state owners make, and it surprises even experienced attorneys from other states.
Under Article X, Section 4 of the Florida Constitution, if you are survived by a spouse or a minor child, you generally cannot freely devise your Florida homestead by will or trust. The constitution overrides your wishes. A homestead may be devised to your spouse only if there is no minor child; otherwise the surviving spouse takes a life estate (or, by election, a one-half interest as tenant in common), with the remainder to the descendants.
Read that again, because it is counterintuitive. You can write “I leave my Florida home to my daughter” in a perfectly valid will, and Florida will ignore it if you leave behind a spouse or minor child. The deed and the will do not control — the constitution does.
The blended-family version of this is brutal. A man remarries, intends his beach condo to pass to the adult children from his first marriage, and dies. His new wife receives a life estate in the homestead by operation of law. The children get a remainder interest they cannot use or sell while she lives, and the two sides end up sharing taxes, insurance, and resentment for years. None of it was the decedent’s intent. All of it was avoidable.
How to Plan Around the Homestead Trap
- Waivers. Homestead rights can be waived in a properly drafted and executed prenuptial or postnuptial agreement that meets Florida’s disclosure standards.
- Joint ownership. Tenancy by the entirety between spouses passes the home to the survivor outside these devise rules and outside probate entirely.
- Enhanced life estate (“Lady Bird”) deeds. Used carefully, these can transfer homestead at death while you retain full control during life — but they do not defeat the constitutional protections when a spouse or minor child survives.
- Honest conversations. If you have a blended family, the plan has to be built around § 4, not in spite of it.
Crucially, putting the home in a revocable trust does not solve this. A trust avoids probate, but a trust cannot override the Florida Constitution. The homestead devise restriction follows the property regardless of how you title it.
Ignoring the Spousal Elective Share
Many people from common-law states assume they can disinherit a spouse, or leave them a token amount, by simply saying so in the will. Florida says otherwise.
Under Florida Statute § 732.201, the surviving spouse of a person who dies domiciled in Florida is entitled to an elective share equal to 30% of the elective estate. The elective estate is broad — it reaches well beyond the probate estate to capture revocable trust assets, certain pay-on-death accounts, jointly held property, and more. There is no minimum length of marriage and no income test.
The practical lesson: you cannot quietly route assets around your spouse through a trust or beneficiary designation and expect it to stick. If disinheritance or a reduced share is the genuine intent of both parties, it must be documented through a valid marital agreement waiving the elective share, not assumed. Surprise is the enemy here. The elective share is most often litigated precisely when nobody planned for it.
Forgetting That Out-of-State Real Estate Triggers Ancillary Probate
This mistake runs in both directions, and dual-state families get hit twice.
If you are domiciled outside Florida but own real property here — a condo in Boca, a house in Naples — your primary probate happens in your home state, and Florida requires a separate ancillary administration to clear title to the Florida real estate. Under Florida Statute § 734.102, ancillary administration is required when a nonresident dies leaving assets, debts owed by Florida residents, or liens on property in this state. That means two probate cases, two sets of court costs, and two sets of attorneys.
There is a narrow relief valve: § 734.1025 offers a simplified ancillary procedure when a nonresident died with a valid will and the Florida property does not exceed $50,000 in gross value. For most Florida real estate, that ceiling is far too low to help.
The mirror image is just as costly. If you are a Florida resident who still owns the lake house up north or the family farm out west, your estate may face ancillary probate there. The fix is the same in either direction: hold out-of-state real property in a properly funded revocable trust, or use appropriate joint-titling or beneficiary deeds, so that no jurisdiction’s probate court has to be opened to transfer it.
For dual-state planning, a trust often does the heavy lifting. Out-of-state owners who want to understand how home transfers and retained life interests can be structured to avoid duplicative probate should review Morgan Legal’s discussion of , which mirrors many of the techniques we coordinate across state lines.
Treating a Will as If It Avoids Probate (It Doesn’t)
A will does not avoid probate. A will is the instruction manual for probate. If your only document is a will, your estate goes through the Florida probate court, full stop. For estates that don’t qualify for summary administration, formal administration in Florida routinely runs six months to a year or more, with attorney’s fees, personal representative commissions, and public filings along the way.
The tools that actually keep assets out of probate are different animals:
- Revocable living trusts, properly funded — meaning the deed and account titles are actually changed into the trust’s name. An unfunded trust is an expensive paperweight.
- Beneficiary designations on retirement accounts, life insurance, and annuities — reviewed after every move, marriage, divorce, or death in the family.
- Pay-on-death and transfer-on-death accounts for bank and brokerage holdings.
- Properly structured joint ownership, used with intent rather than by accident.
The companion mistake is naming a minor child or a disabled adult as an outright beneficiary, which can force a guardianship or destroy needs-based benefits. Where a beneficiary has special circumstances, a dedicated structure — such as a — can preserve eligibility for public benefits while still providing for the person you love. The exact vehicle differs by state, but the principle is universal: never leave money directly to someone who can’t legally or practically receive it.
Letting Powers of Attorney and Health Directives Lapse Across State Lines
Estate planning is not only about death. The documents you need while alive — a durable power of attorney, a designation of health care surrogate, and a living will — are governed by state-specific statutes. Florida’s durable power of attorney act (Chapter 709) imposes formalities that differ from other states, and Florida banks and hospitals are notoriously particular about honoring out-of-state forms.
I have watched families freeze because Mom’s New York power of attorney sat unrecognized by a Fort Lauderdale hospital while she was incapacitated. The document was valid. It simply wasn’t the form the institution wanted to see. If you spend meaningful time in Florida, execute a Florida-compliant durable power of attorney and health care surrogate designation in addition to whatever you hold up north.
Setting It and Forgetting It
The last mistake is the quietest: a plan that was perfect in 2014 and was never touched again. Tax law changes. Florida residency changes your exposure. Children grow up; spouses pass away; beneficiaries divorce. A plan is a living thing, not a monument.
A sensible cadence is a full review every three to five years, and an immediate review after any of these: a move to or from Florida, a marriage or divorce, a death in the family, the sale or purchase of real property, or a significant change in net worth. If you are managing assets in more than one state, that coordination is exactly where mistakes hide — and where a careful review pays for itself.
Florida-specific guidance for residents and property owners is available through our Florida probate resources and through the firm’s dedicated . If your situation spans two states, it is worth having someone who reads both maps before the trip, not after.
The Bottom Line
Most Florida estate planning mistakes are not failures of intelligence — they are failures of translation. A good plan from another state, dropped into Florida without adjustment, runs straight into homestead, the elective share, and ancillary probate. Account for those three first, fund what you create, and revisit the whole thing on a schedule. Do that, and your family inherits an estate instead of a lawsuit. To start a state-specific review, reach out to our office.
Frequently Asked Questions
Is my out-of-state will valid in Florida?
Usually yes. Under Florida Statute § 732.502(2), a will executed by a nonresident is valid in Florida if it was valid under the laws of the state where it was signed — except for holographic (unwitnessed handwritten) and nuncupative (oral) wills, which Florida does not recognize at all. Even a valid out-of-state will can be harder to admit if it isn’t self-proved, so Florida residents are usually better served by executing a new Florida will with a self-proving affidavit.
Can I leave my Florida home to whomever I choose in my will?
Not always. Under Article X, Section 4 of the Florida Constitution, if you are survived by a spouse or a minor child, your homestead generally cannot be freely devised. It may pass to your spouse only if there is no minor child; otherwise the spouse receives a life estate (or an elective one-half interest) with the remainder to your descendants. This rule overrides your will and applies even if the home is in a revocable trust.
Can I disinherit my spouse in Florida?
Not without a valid waiver. Florida Statute § 732.201 gives a surviving spouse the right to an elective share equal to 30% of the elective estate, which reaches trust assets, certain joint accounts, and beneficiary-designated property — not just the probate estate. There is no minimum marriage length. A spouse can only be limited to less than this share through a valid prenuptial or postnuptial agreement that waives the elective share.
Why does my estate need probate in two states?
If you own real property in a state where you don’t live, that state usually requires its own probate to transfer title. For nonresidents who own Florida real estate, Florida Statute § 734.102 requires an ancillary administration in addition to the main probate in your home state. The common fix is to hold out-of-state real property in a properly funded revocable trust or through appropriate joint titling so no second probate is needed.
Does a revocable living trust avoid Florida probate?
It can, but only if it is actually funded — meaning your deeds and account titles are retitled into the trust’s name during your lifetime. An unfunded trust does not avoid probate. Also note that a trust cannot override Florida’s constitutional homestead devise restrictions or the spousal elective share; those protections apply regardless of how the property is titled.
For more on our Florida practice, see our overview of powers of attorney in Florida. Morgan Legal Group's affiliated New York office also handles New York probate and estate administration.
