Charitable Giving and Trusts in a Florida Estate Plan: A Miami Attorney’s Guide

Charitable giving in a Florida estate plan is the deliberate use of trusts, bequests, and beneficiary designations to direct part of your wealth to charity while you are living or at death. The most powerful tools are charitable trusts — chiefly the charitable remainder trust (CRT) and the charitable lead trust (CLT) — which let you support a cause, generate income or tax advantages, and still provide for your family. In Florida, these gifts must be coordinated with the homestead, the spousal elective share, and the surviving spouse’s statutory rights, or they can be partially undone after you die.

I have sat across the table from too many surviving spouses who learned, weeks into probate, that a generous charitable bequest had quietly reduced what they expected to receive. Charity is a worthy goal. But in Florida, a charitable plan that ignores spousal rights is a plan that may not hold. Below is how I walk Miami clients through it.

Why Florida is different for charitable estate planning

Florida has no state estate tax and no state income tax. That changes the math compared to high-tax states. A lot of the federal income-tax and estate-tax benefits of charitable trusts still apply here, but the state-level incentives many people assume exist simply do not. So the case for a charitable trust in Florida usually rests on three things: the federal income-tax deduction, the federal estate-tax picture for larger estates, and your genuine philanthropic intent.

The other thing that makes Florida distinct is how aggressively it protects spouses and the homestead. Two provisions dominate every charitable conversation I have:

• The elective share. Under Florida Statutes Chapter 732, a surviving spouse is entitled to 30% of the “elective estate.” That elective estate is broad — it reaches well beyond the probate estate to include revocable trust assets, certain pay-on-death accounts, and even some gifts made within a year of death. You cannot disinherit a spouse by leaving everything to charity through a trust.
• Homestead restrictions. Florida’s constitutional homestead protection limits who can inherit your primary residence if you are survived by a spouse or minor child. You generally cannot leave the homestead to a charity outright if a spouse survives you.

Keep those two guardrails in mind as we go. They are the reason charitable planning in Florida is a coordination problem, not just a tax problem.

Charitable remainder trusts: income now, gift later

A charitable remainder trust is an irrevocable trust you fund with assets — often highly appreciated stock or real estate. The trust pays an income stream to you (or another beneficiary, such as a spouse) for a term of years or for life. Whatever remains at the end goes to the charity you named. Hence the name: the charity gets the remainder.

There are two flavors:

1. Charitable Remainder Annuity Trust (CRAT). Pays a fixed dollar amount each year. Predictable, but no inflation hedge, and you cannot add assets after funding.
2. Charitable Remainder Unitrust (CRUT). Pays a fixed percentage of the trust’s value, recalculated annually. The income rises and falls with the trust. You can add assets to most CRUTs over time.

The payout rate must be at least 5% and no more than 50% of the trust value, and the charity’s projected remainder interest must be worth at least 10% of the initial funding. Those are IRS requirements, and a trust that fails them is not a valid CRT.

Why Miami clients use CRTs

The classic use case is a low-basis asset. Say you bought a Brickell condo or a block of stock decades ago and it has ballooned in value. Sell it outright and you face a capital-gains bill. Contribute it to a CRT instead, and the trust — a tax-exempt entity — can sell it without immediate capital-gains tax, reinvest the full proceeds, and pay you income on the larger base. You also get a partial charitable income-tax deduction in the year you fund the trust, based on the present value of the charity’s remainder interest.

For income-focused surviving spouses, a CRT can be structured to pay the spouse for life. That is a meaningful planning lever, but it has to be drafted with the elective share in mind, which I cover below.

Charitable lead trusts: the mirror image

A charitable lead trust flips the order. The charity receives the income stream first — for a set term — and your family receives whatever remains at the end. CLTs are typically used by larger estates that want to transfer assets to children or grandchildren at a reduced gift- or estate-tax cost, while supporting charity in the meantime.

CLTs shine in low-interest-rate environments because the value of the charitable lead interest is calculated using the IRS Section 7520 rate. A lower rate means a larger deduction and a smaller taxable gift to the family remainder beneficiaries. For most ordinary Miami estates a CLT is overkill; for a high-net-worth family with a real charitable mission and concentrated assets, it can be elegant.

Simpler charitable tools that belong in many plans

Not every charitable goal needs a trust. Before you build something complicated, consider whether one of these gets you 90% of the way there:

• Charitable bequest in a will or revocable trust. A clean dollar amount or percentage to a named charity. Simple, revocable during life, fully deductible against the estate.
• Beneficiary designation on a retirement account. Naming a charity as beneficiary of an IRA or 401(k) is one of the most tax-efficient gifts available. The charity pays no income tax on the inherited account, while your human heirs would. Leave the IRA to charity and other assets to family.
• Donor-advised fund (DAF). A low-overhead way to bunch deductions, involve family in grant-making, and keep your giving private and flexible.
• Qualified Charitable Distribution (QCD). If you are 70½ or older, you can move up to a set annual limit directly from an IRA to charity, satisfying required minimum distributions without the income hitting your return.

I often tell clients to start here. The trust comes later, if at all, once we see the size of the estate, the asset mix, and the family picture.

The part most articles skip: charity vs. the surviving spouse

This is where Florida estate plans get undone. Section 732.2035 of the Florida Statutes pulls a long list of assets into the elective estate, and that includes property transferred into a revocable trust and, in some cases, irrevocable transfers made for less than full value within a year of death. A charitable trust funded shortly before death, or a revocable trust loaded with charitable bequests, can be reached when a surviving spouse elects to take the statutory 30% share.

Here is the practical sequence. When a spouse files for the elective share under Chapter 732, Florida calculates the elective estate, applies the 30%, then determines which assets satisfy that share and in what order. Charitable bequests do not get priority over the spouse’s right. If the rest of the estate cannot satisfy the elective share, the charitable gift can be reduced to make the spouse whole.

So a beautifully drafted CRT or a six-figure bequest to a Miami hospital foundation can shrink at probate because the math has to honor the spouse first. None of that means you should not give. It means the giving and the spousal plan have to be designed together. A few approaches I use:

• Fund charity from assets clearly outside the elective estate where possible, and document the source and timing.
• Use a spousal waiver. A valid prenuptial or postnuptial agreement, or a separate written waiver that meets Florida’s disclosure requirements, can waive or limit the elective share — clearing the runway for larger charitable gifts. These must be done correctly or they fail.
• Name the spouse as the income beneficiary of a CRT so the charitable plan and the spouse’s security are the same instrument, not competing ones.
• Coordinate the homestead separately, since you cannot route it to charity over a surviving spouse anyway.

If you are the surviving spouse reading this after the fact, the elective share is your protection, and the deadlines to assert it are short. That is a conversation to have with counsel immediately, not after probate is underway.

How a charitable trust fits with the rest of your plan

A charitable trust never lives alone. It sits inside a structure of wills, a revocable living trust, beneficiary designations, and Florida-specific homestead planning. The charitable piece should be the last layer, drafted after the foundation is set, so it complements your spousal and family provisions rather than colliding with them. For families with members who have disabilities, charitable giving also has to be coordinated with needs-based benefits — a poorly designed gift can disqualify a beneficiary from public assistance, which is why a is often paired with the larger plan.

It also helps to understand the full menu of before committing to a charitable vehicle, because the right answer is frequently a combination — a revocable trust for control during life, a charitable remainder trust for the appreciated asset, and clean beneficiary designations for the retirement accounts.

Common mistakes I see in Miami charitable plans

• Funding a CRT with the wrong asset. Mortgaged real estate can trigger unrelated business taxable income inside the trust. Get an appraisal and a tax review first.
• Ignoring the elective share. The single most common failure. The spouse’s 30% does not yield to charity.
• Trying to give away the homestead. Florida’s constitution generally will not allow it over a surviving spouse or minor child.
• Leaving taxable accounts to charity and IRAs to kids. Usually backwards. Charity should get the IRA.
• Treating the trust as set-and-forget. CRT payout rates, the 7520 rate, and your family circumstances change. Review the plan every few years.

When to bring in an attorney

Charitable trusts are irrevocable. Once funded, you generally cannot unwind a CRT or CLT, and a drafting error is expensive to live with. If you are holding a low-basis asset, thinking about a legacy gift, or you are a surviving spouse facing a will that favors a charity, that is the moment to get Florida-specific advice. The team at our practice handles charitable trusts alongside elective-share and homestead issues every week.

If you would like to map your charitable goals against your spousal and family obligations, schedule a consultation with our Miami office. And if probate has already started and you are a surviving spouse, do not wait — review your Florida probate rights before the election deadline passes.

Frequently Asked Questions

Can I leave everything to charity and disinherit my spouse in Florida?

No. Florida’s elective share under Chapter 732 guarantees a surviving spouse 30% of the elective estate, which includes many trust and non-probate assets. Charitable bequests do not take priority over that right, so a gift to charity can be reduced at probate to satisfy the spouse’s share unless the spouse has signed a valid waiver.

What is the difference between a charitable remainder trust and a charitable lead trust?

A charitable remainder trust (CRT) pays income to you or your family first, with the remainder going to charity at the end. A charitable lead trust (CLT) reverses that: the charity receives the income stream first, and your family receives whatever remains. CRTs suit clients seeking income and a capital-gains advantage on appreciated assets; CLTs suit larger estates transferring wealth to heirs at reduced tax cost.

Do charitable trusts save Florida state taxes?

Florida has no state estate tax or state income tax, so the savings come at the federal level: a partial income-tax deduction when you fund the trust, avoidance of immediate capital-gains tax on appreciated assets sold inside a CRT, and potential federal estate-tax benefits for larger estates. The Florida-specific advantage is mainly the lack of additional state tax drag, not a separate state incentive.

Can I give my Florida homestead to charity in my will?

Generally no, if you are survived by a spouse or minor child. Florida’s constitutional homestead protection restricts how your primary residence can pass at death. The homestead usually must be handled separately from any charitable plan, and attempts to route it to charity over a surviving spouse will typically fail.

Is a charitable remainder trust revocable if I change my mind?

No. CRTs and CLTs are irrevocable once funded, which is why the asset selection, payout rate, and coordination with your spouse’s rights must be correct from the start. Simpler, revocable alternatives like a charitable bequest in your will or a donor-advised fund let you retain flexibility during your lifetime.