By Chuck Roulet, Estate Planning & Elder Law Attorney | Licensed in Florida & Minnesota | Nearly 30 Years of Experience | Read full bio →
A Florida man signed a Lady Bird deed. It was simple and inexpensive, and it was supposed to keep his house out of court. Years later he married again. Then he died. His widow asked the court to protect her homestead rights. The person named on the deed said the deed had already decided who got the house. The trial judge threw out the widow’s case. The appeals court reversed and sent it back. The deed meant to keep this family out of court put them there instead.
I’m Chuck Roulet. I’ve practiced estate planning and elder law for nearly 30 years, and I’m licensed in both Florida and Minnesota. I’ll be straight with you: I don’t use Lady Bird deeds in my practice. But I’ll also be fair. A Lady Bird deed and a living trust both keep your house out of probate. If that were the only question, the deed would win on price every time.
It isn’t the only question. The real question is what happens next — if you remarry, if you get sick, if a child is going through a divorce, if someone you love depends on government benefits. That’s where these two tools are very different.
Quick answer
Both a Lady Bird deed and a properly funded living trust can pass your Florida home to your family without probate. A Lady Bird deed covers one property and hands it over outright at your death. A trust can cover all of your assets, names someone to step in if you get sick, and can protect what your children inherit from divorce, lawsuits, loss of government benefits, and estate tax in the state where they live. For a single or widowed homeowner with grown children who get along, a Lady Bird deed can do the job. For most other families, it leaves important questions unanswered.
What a Lady Bird deed is
A Lady Bird deed is a deed you sign and record now. You keep living in your home, and you can still sell it, refinance it, or change your mind without anyone’s permission. When you die, the house goes straight to the people you named, without probate.
Its formal name in Florida is an enhanced life estate deed. Here is something most people don’t know: no Florida statute creates it. It rests on old case law and on standards the title industry uses. That doesn’t make it invalid, but it does mean the exact wording matters a great deal, because there is no statute to fill in the gaps when a deed is drafted poorly.
For a deeper look at the deed itself, read my article What a Lady Bird Deed Does — and What It Doesn’t.
What a living trust is
A revocable living trust is a set of instructions for your whole estate. You put your house, and usually your accounts, in the name of your trust. You stay in charge as trustee while you’re alive. If you get sick, the person you chose steps in right away. When you die, that same person follows your instructions, without probate.
Both avoid probate. So what’s the difference?
The difference shows up when real life gets complicated. Very often, it starts with a second marriage.
Real case #1: The wife who never signed (Clemons v. Thornton)
A husband owned the home he shared with his wife. It was their homestead. He also had a daughter from his first marriage, and he wanted her to have the house someday. So in 1993 he signed a deed that gave him and his wife the house for life and, after they were both gone, sent it to his daughter. It wasn’t technically a Lady Bird deed, but it was the same idea: a deed meant to pass the house at death, without probate.
There was one problem. His wife never signed it.
In Florida, if you are married and the house is your homestead, your spouse generally must sign any deed that gives it to someone else. That rule comes from our state constitution, and it applies even if your spouse’s name is not on the title.
He died about seven years later without a will. The appeals court ruled in 2008, fifteen years after he signed the deed. The gift to his daughter failed. Instead, the house went the way Florida law sends it: his widow kept it for her lifetime, and after her, it went to all of his descendants. The daughter he was trying to take care of ended up sharing the house with relatives her father never named.
(Clemons v. Thornton, 993 So. 2d 1054 (Fla. 1st DCA 2008).)
Real case #2: A Lady Bird deed meets a second marriage (McFarlane v. Holness)
In a 2026 case from Florida’s Fourth District Court of Appeal, a man signed a Lady Bird deed with his first wife. Life moved on. He married again, but the deed stayed exactly the same. After he died, his second wife asked the court to protect her homestead rights. The other side said the deed had already settled the question. The trial judge agreed and dismissed her petition. The appeals court reversed and sent the case back without deciding what the deed actually did.
So that family is still in court over the very thing the deed was supposed to handle.
(McFarlane v. Holness, No. 4D2025-2750 (Fla. 4th DCA Sept. 23, 2026).)
The lesson: a deed is frozen on the day you sign it
A Lady Bird deed is frozen on the day you sign it. Your life isn’t. Marriages end. New marriages begin. A deed won’t remind you to update it, and it can’t plan for a spouse you haven’t met yet.
To be accurate, Florida’s homestead rules apply to trusts too. A trust doesn’t make those rules go away. What solves the second-marriage problem is planning: both spouses sign the right paperwork up front, including a written waiver of homestead rights where that is what the couple wants, and the plan spells out who gets to live in the house and who gets it afterward. A trust is where those answers can be written down in detail. That conversation costs far less than an appeal.
If you have remarried, read Why You Shouldn’t Leave Everything to Your Spouse for more on protecting children from a first marriage.
Six more questions a Lady Bird deed can’t answer
1. What if you get sick?
A Lady Bird deed only works when you die. If you develop dementia and the house has to be sold to pay for your care, the deed doesn’t name anyone to sell it. Without a strong durable power of attorney, your family may need a court guardianship. A trust names a successor trustee who can step in right away.
2. What if a child is young?
A child under 18 can own a house but can’t sell it. That usually means a court-supervised guardianship, and whatever is left is handed to the child outright at 18. A trust can hold the house or the money for a young person, with an adult in charge, on your timeline.
There is a second trap. If you are survived by a minor child, Florida’s homestead rules can make the gift in a Lady Bird deed fail on your homestead. The same restriction can reach a revocable trust, so young families need real planning, not just a deed or a form.
3. What if your child is getting divorced or gets sued?
The day you die, a Lady Bird deed hands the house to your child outright. From that moment it is theirs, and it is exposed to their divorce, their lawsuits and their creditors. A trust can keep your child’s share in a protected trust for their lifetime, while still letting them use it.
4. What if your kids don’t agree?
Name three children on a Lady Bird deed and they own the house together. One wants to sell, one wants to rent it out, and one wants to move in. Any one of them can go to court and force a sale through a partition action, and the legal fees come out of the proceeds. A trust puts one person, your trustee, in charge of that decision.
5. What if someone you love receives government benefits?
Think of a child or grandchild with a disability who depends on SSI or Medicaid. Those programs have strict limits on what a person can own. If a Lady Bird deed hands them a house, or a share of one, outright, they can lose their benefits until the inheritance is spent down. They lose the benefits, and then they lose the inheritance too.
A trust can be designed to protect both. A supplemental needs trust holds their share so it pays for the extras that make life better, without counting against their benefits. A well-drafted trust can also include standby supplemental needs language, so if a child or grandchild ever needs benefits years from now, their share is protected automatically.
People sometimes ask, “Can’t I just name a trust in my Lady Bird deed?” You can. But then you still need the trust, drafted correctly, and at that point the deed isn’t saving you much.
6. What if your child lives in a state with an estate tax?
Florida has no state estate tax as of this writing, but many states do. Minnesota, for example, taxes estates over $3 million, and a married couple there can’t simply combine their exemptions the way they can for federal estate tax.
Here is what almost nobody explains. When your child inherits your house outright, it becomes part of their estate. When they die, their state may tax it, and if the family is large enough, the federal estate tax can too. Your Florida house can end up taxed in Minnesota a generation later. A properly designed trust can keep your child’s share out of their taxable estate while still letting them use it and benefit from it. That can reduce, and sometimes avoid, estate tax on the next generation. A Lady Bird deed hands everything over outright, and outright means taxable.
And one more: it covers one house
A Lady Bird deed covers the property it describes and nothing else. Your bank accounts, investments, car, and any second home or northern property are untouched. A trust can hold all of them under one set of instructions.
What neither one fixes
In fairness, some things neither tool fixes.
Property taxes. When you die, your Save Our Homes assessment cap generally does not pass to your children, whether the house goes by deed or by trust. Unless an exception applies, such as a transfer to a surviving spouse, the home is reassessed at full market value as of the next January 1. If your children plan to keep the house, it’s worth knowing that number now.
If you want to discover more about Amendment 3, click here to read my article about the important deadlines you must know.
Insurance. Whichever you choose, call your insurance agent and make sure your policy matches how the house is titled.
When a Lady Bird deed can be fine
A Lady Bird deed can do the job if all of these are true:
- You are single or widowed
- Your children are grown and get along
- Your home is your main asset
- You also have a durable power of attorney and a will in place
Just know what it can’t do.
The bottom line
Both tools avoid probate. But a Lady Bird deed answers only one question: who gets the house when you die. A trust answers the questions families actually end up fighting about. What if you remarry? What if you get sick? What if your children need protection from divorce, from losing their benefits, or from estate tax? What if they don’t agree?
Frequently asked questions
Does a Lady Bird deed avoid probate in Florida?
Yes, for the property it describes, if it is drafted and signed correctly. It does not cover any other assets, and it can fail on homestead property when a spouse didn’t sign or a minor child survives you.
Does my spouse have to sign my Lady Bird deed?
If you are married and the property is your Florida homestead, generally yes, even if your spouse is not on the title. In the Clemons case, the gift to the husband’s daughter failed because his wife never signed.
What happens to my Lady Bird deed if I remarry?
Nothing happens to the deed automatically, and that is the problem. Your new spouse may have homestead rights the deed doesn’t account for, which can lead to litigation like the 2026 McFarlane case. Review your plan whenever you marry.
Is a living trust better than a Lady Bird deed?
For a simple family with one main asset, a Lady Bird deed can be enough. A trust is usually better when there is a second marriage, young children, a beneficiary on government benefits, a child with marital or creditor risk, property in more than one state, or a child who lives in a state with an estate tax.
Does a living trust protect my home from Florida’s homestead rules?
No. Florida’s homestead restrictions apply to revocable trusts too. Good planning works with those rules, for example through a spousal waiver signed up front, rather than trying to go around them.
Take the next step
Want to go deeper? Click here to join us in my Estate Planning Masterclass, where I share the strategies I use with private clients to avoid probate, save on taxes, protect the money you leave your kids if a child divorces, and much more.
If you live in Florida and would like us to look at your deed or your plan, call our Venice office at 941-909-4644 or visit Rouletlaw.com to schedule a consultation. Minnesota families can reach our Minnetonka office at 763-420-5087. Or you can fill out the contact form on this page and a member of our team will reach out to you to schedule.
About the Author
Chuck Roulet is the founding attorney of Roulet Law Firm, P.A., with nearly 30 years of experience in estate planning, elder law, and long-term care planning. He is licensed in both Florida and Minnesota — one of the few attorneys in the country who advises families navigating the laws of both states. He is the author of The Florida Snowbird Guide and has been featured in USA Today, The Epoch Times, Money Matters, and Live Life Large. Chuck serves clients from offices in Venice, Florida and Minnetonka, Minnesota.
Chuck’s commitment to elder law is personal. His grandfather — a World War II veteran — worked his entire life, saved carefully, and eventually inherited a small home from his brother. When the time came that he needed nursing home care, he lost everything: his home, his savings, all of it. He sat across from Chuck and wept — not because he was afraid of dying, but because he felt he had failed his family after a lifetime of doing everything right. What Chuck later discovered was that Minnesota was not following federal law at the time. His grandfather did not have to lose everything. He just never had someone in his corner who knew how to protect him. That moment is why Chuck practices elder law.
This article is for general informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship. Laws change and every family is different, so please talk with an attorney licensed in your state about your specific situation.
