The non-citizen spouse problem: why QDOT trusts matter

Under federal law, a U.S. citizen can leave an unlimited amount to a spouse free of federal estate tax thanks to the unlimited marital deduction. There is a critical exception: that deduction generally does not apply when the surviving spouse is not a U.S. citizen. Congress was concerned that a non-citizen spouse could inherit a large estate and then leave the country beyond the reach of U.S. tax collection.

The standard solution is a Qualified Domestic Trust (QDOT). Property passing into a properly drafted QDOT for a non-citizen surviving spouse can qualify for the marital deduction, deferring estate tax until distributions of principal are made or the surviving spouse dies. For a Russian or Latin American family where one spouse is a citizen and the other holds only a green card, overlooking this rule can be expensive. The good news is that estate tax exposure also depends on naturalization timing — a spouse who becomes a citizen before the estate tax return is filed may avoid the QDOT requirement entirely. That is exactly why your estate plan and your immigration timeline should be reviewed together.

Non-resident aliens and U.S. estate tax exposure

Immigration status also drives how much of your estate is even subject to U.S. estate tax. A non-resident alien — someone who is neither a citizen nor domiciled in the United States — is generally taxed only on U.S.-situated assets, such as Florida real estate and shares of U.S. corporations, and the available exemption for non-resident aliens is far smaller than the exemption for citizens and domiciliaries. A family that buys a Miami condo while still living abroad on an investor or work visa can face a very different tax picture than a long-settled green-card holder. Domicile is a fact-specific question of intent, so the line between resident and non-resident is rarely obvious. We do not invent numbers for your situation; we calculate exposure based on your actual status and assets.

Florida wills, trusts, and homestead

Whatever your immigration status, your Florida documents must satisfy Florida law. A valid will requires execution formalities under Florida Statutes §732.502 — signed at the end by the testator and witnessed by two attesting witnesses in each other’s presence. Revocable and irrevocable trusts are governed by the Florida Trust Code in Chapter 736. Florida’s constitutional homestead protection adds another layer: it restricts how you can devise your primary residence if you are survived by a spouse or minor child, regardless of citizenship. International families are often surprised that a will drafted abroad, or a foreign inheritance arrangement, does not control a Florida homestead the way they expect.

Children, guardianship, and powers of attorney

Naming a guardian for minor children is essential for immigrant families, because the people you trust most may live overseas. Florida courts decide guardianship in the child’s best interest, and designating your preferred guardian in your estate documents gives the court your clear intention. Equally important are durable powers of attorney and health care directives — particularly for clients who travel abroad for a consular interview, a visa stamp, or to care for relatives. If you are out of the country when a financial or medical decision must be made in Florida, a properly executed power of attorney lets a trusted agent act without a court proceeding.

Coordinating estate planning with your immigration case

This is where we draw a firm line: our firm handles Florida estate planning, not immigration. When your plan depends on a pending green-card, adjustment-of-status, or naturalization matter, you need dedicated immigration counsel. We routinely coordinate with the immigration team at Fitenko Law, whose Russian- and Spanish-speaking attorneys assist clients with employment-based immigration as well as broader USCIS case strategy. Sequencing matters — for example, timing a naturalization decision can determine whether a QDOT is even necessary, and a beneficiary’s immigration status can affect how an inheritance is structured.

If you are new to South Florida, the safest approach is to build both pieces at once: a Florida estate plan that respects homestead, §732.502, and Chapter 736, paired with immigration counsel who understands your status. Contact our Miami office to begin your estate plan, and we will help you coordinate the immigration side with the right attorney.

1. A Last Will and Testament

Your will is the foundation. Under Florida Section 732.502, it must be signed at the end and witnessed by two people who sign in your presence. A will names your beneficiaries, designates a personal representative to settle your estate, and, for parents, nominates a guardian for minor children. Without a will, Florida’s intestacy statutes (Chapter 732) distribute your assets to relatives in a fixed order that may not reflect your wishes, and a Miami-Dade judge chooses who handles everything.

2. A Durable Power of Attorney

This document, governed by Florida’s Chapter 709, lets you name an agent to handle your finances, pay bills, manage property, and conduct business if you become incapacitated. Florida’s power of attorney rules are strict and effective immediately upon signing, with specific requirements for the most powerful authorities. Without one, your family may have to ask a Miami court to appoint a guardian of the property, a slow and public process.

3. A Designation of Health Care Surrogate

This names the person who makes medical decisions for you if you cannot speak for yourself. It is one of the most important and most overlooked documents. Whether you are single, partnered, or married, naming a surrogate spares your loved ones from uncertainty and lets Miami hospitals act on your behalf without delay.

4. A Living Will

A living will states your wishes about life-prolonging procedures if you are terminally ill, in an end-stage condition, or in a persistent vegetative state. It works alongside your health care surrogate, giving your chosen decision-maker clear guidance instead of leaving an impossible choice to family members.

5. Updated Beneficiary Designations

Retirement accounts, life insurance, and many bank and brokerage accounts pass by beneficiary form, not by your will. These designations override everything else, so keeping them current is essential. Pay-on-death and transfer-on-death registrations let assets move directly to your chosen person and skip probate entirely.

Consider These Add-Ons

• A revocable living trust (Chapter 736) to avoid probate, keep your affairs private, and control how assets are distributed over time, useful for Miami homeowners and families with minor children.
• A Lady Bird deed to pass your Florida home automatically at death while keeping full control and homestead protection (Article X, Section 4) during your life.

Know What Probate Looks Like in Florida

If probate is needed, Florida offers summary administration for smaller or older estates and formal administration for larger ones. Good planning, through trusts, beneficiary designations, and proper deeds, can reduce or eliminate the need for probate altogether. And because Florida has no state estate or inheritance tax, your planning can focus on smooth transfer rather than state tax bills.

Talk to a Florida Attorney

These five documents form a baseline every Miami adult should have. Because execution requirements, homestead, and probate rules in Florida are specific, consider working with a licensed Florida estate planning attorney to put a complete, valid plan in place for you and your family in Miami-Dade County.

I’ve sat across the table from too many surviving spouses who learned, after a death, that “we have a place in Florida” and “we are Florida residents” are not the same sentence in the eyes of the law. This article walks through how to make them the same sentence on purpose.

Why dual-state life complicates an estate plan

The problem isn’t owning property in two states. Plenty of people do that without trouble. The problem is that residency, domicile, taxation, probate, and spousal rights are each decided under different rules, and a snowbird sits on the seam between two states’ versions of all five.

Consider what each state cares about:

• Income tax. Your domicile state taxes your worldwide income. High-tax northern states audit aggressively when a longtime resident claims they “moved” to Florida.
• Estate and inheritance tax. Florida has no state estate tax. Several northern states do, and some impose it on real estate physically located within their borders even for a Florida resident.
• Probate. Real property is governed by the law of the state where it sits. A Florida resident who dies owning a house in another state often triggers a second, separate probate there.
• Spousal protections. Florida’s elective share and homestead rules differ sharply from those up north, which changes what a surviving spouse can actually claim.

Each of those is a separate door, and you want all of them swinging the same way.

Pick one domicile and prove it

Domicile is the legal home you intend to return to. You can own homes in five states, but you have exactly one domicile, and it controls where your estate is primarily administered and which state taxes your income. For most snowbirds the goal is to establish Florida as that domicile, because Florida has no state income tax and no state estate tax.

Declaring it isn’t enough. Northern revenue departments treat a domicile change as a factual question and look at the whole picture. Build a consistent record:

1. File a Declaration of Domicile with the clerk of court in your Florida county (authorized under Florida Statutes Chapter 222).
2. Register to vote in Florida and actually vote here.
3. Get a Florida driver’s license and register your vehicles in Florida.
4. Update the address on your federal tax return, passport, and financial accounts to your Florida home.
5. Apply for the Florida homestead exemption on your Miami-Dade residence, which also signals primary residency.
6. Spend the majority of the year in Florida and keep records (calendars, travel receipts, cell-phone location data) that show it.

The day-count test matters most for income-tax audits. Many high-tax states use a “183-day” rule combined with whether you maintain a permanent place of abode there. If you keep a year-round apartment up north and stay 190 days, your domicile paperwork won’t save you. Domicile is intent plus behavior, and the behavior has to match.

The Florida homestead advantage

Florida’s homestead protection, rooted in Article X, Section 4 of the Florida Constitution, shields your primary residence from most creditors and caps how fast its assessed value can rise. It’s one of the strongest asset-protection features in the country. But homestead also carries restrictions on how you can leave the home if you’re survived by a spouse or minor child, which loops directly into the spousal-rights issues below. You can’t simply will the homestead to your children and cut out your spouse.

Retitle property so it passes in both states

Owning real estate in two states is the single most common reason a snowbird family ends up in two separate probates. Probate is local: the Florida home goes through a Florida court, and the out-of-state property goes through an “ancillary” probate in that state’s court. Two courts, two sets of fees, two timelines, often two attorneys.

The cleanest fix is usually a revocable living trust. You transfer both the Florida residence and the northern property into the trust during your lifetime. When you die, the successor trustee distributes everything under the trust’s terms without any probate in either state. For dual-state owners, avoiding that second ancillary probate alone often justifies the cost of the trust. If you’re weighing how a trust fits a multi-state estate, the team at handles exactly this kind of cross-border coordination.

Other titling tools have their place, but each has tradeoffs:

• Lady Bird (enhanced life estate) deed. A Florida favorite that lets your home pass to named beneficiaries at death without probate, while you keep full control and homestead protection during life. Useful for the Florida residence specifically.
• Joint ownership with right of survivorship. Simple, but it can backfire — it overrides your will, exposes the property to your co-owner’s creditors, and can create gift-tax and basis problems.
• Transfer-on-death deeds. Available in some states but not Florida, so they may cover the northern property but not the Miami one. Coordination matters.

The wrong move is to use a patchwork of beneficiary designations and joint titles that contradict your will. Designations win over the will, so a forgotten transfer-on-death account can quietly disinherit the very person you meant to protect.

Make your documents valid in both states

A will validly executed in one state is generally recognized in another, but “generally” is doing heavy lifting. Self-proving affidavit rules, witness requirements, and the treatment of holographic (handwritten) wills vary. Florida, for instance, does not recognize handwritten wills unless they meet the same witnessing formalities as a typed one, and it has specific rules for who can serve as a personal representative.

Healthcare and financial documents are even more fragile across state lines. A New York health-care proxy and a Florida designation of health-care surrogate use different forms and terminology, and a hospital in the state you’re visiting may balk at an out-of-state form during an emergency. Practical guidance:

• Have your will or trust reviewed by a Florida attorney once you establish domicile here, so it speaks Florida’s statutory language and names a qualified personal representative.
• Execute both a Florida healthcare surrogate designation and living will, and keep your northern-state versions current too, so whichever state you’re in has a document its providers will honor.
• Use a durable power of attorney drafted to satisfy Florida’s strict statutory requirements (Florida Statutes Chapter 709), which are more demanding than many other states’.

If aging parents or you yourself are facing long-term-care decisions across state lines, elder-law coordination becomes part of the estate plan, not a separate project. Morgan Legal’s often works alongside Florida counsel for families managing care and assets in both states.

The spousal-rights trap dual-state couples miss

Here is where surviving spouses get hurt, and it’s the issue I see most often go unaddressed. Florida gives a surviving spouse an elective share equal to 30% of the “elective estate” under Florida Statutes Sections 732.201 through 732.2155. Critically, Florida’s elective estate is broad: it reaches beyond the probate estate to include revocable trust assets, certain jointly held property, payable-on-death accounts, and more. The idea is that you can’t disinherit a spouse simply by moving assets out of the will.

Northern states calculate the spousal “right of election” differently — different percentages, different definitions of what’s counted, sometimes different procedures and deadlines. So a couple who structured their plan around their old state’s elective-share rules may find that the Florida math produces a very different result once Florida becomes the domicile.

Three scenarios where this bites:

1. Blended families. A second spouse and children from a first marriage. If the plan was built to give the children the bulk of the estate under a state with a narrow elective share, Florida’s broad 30% reach can upend that allocation.
2. The waived or outdated prenup. A prenuptial or postnuptial agreement that waived elective-share rights under another state’s law should be reviewed for Florida enforceability. Florida has its own requirements for a valid spousal waiver.
3. Homestead surprise. Even with a valid plan, Florida homestead law can override an attempt to leave the home away from a surviving spouse, granting the spouse a life estate or a half interest depending on the choices made.

If you’re a surviving spouse who suspects your share was shortchanged, the elective-share deadline is unforgiving — generally the earlier of six months after service of the notice of administration or two years after death. Don’t wait to get advice. And if you’re doing the planning now, model the elective share under Florida law before you assume your existing structure still works.

Coordinating Florida and northern counsel

Dual-state planning genuinely benefits from attorneys licensed in each relevant state working from the same playbook. The Florida lawyer handles homestead, the Declaration of Domicile, Florida-compliant documents, and the elective-share analysis. The northern lawyer handles that state’s estate tax exposure on property left behind, ancillary-probate avoidance, and any trusts that hold northern assets. You can learn more about the Florida side of this work at Morgan Legal’s .

When you’re ready to put the pieces together, start with the documents that anchor everything — your will and your trust — and confirm how each titled asset will actually pass. If a death has already occurred and you’re staring down a second probate in another state, our overview of Florida probate explains what to expect, and you can always reach our office to talk through your specific situation.

A practical checklist for snowbirds

• File a Declaration of Domicile and apply for Florida homestead.
• Count your days and keep proof; respect the northern state’s residency tests.
• Move real property into a revocable trust (or use a Lady Bird deed for the homestead) to dodge dual probate.
• Re-execute healthcare and power-of-attorney documents in Florida-compliant form.
• Re-run the spousal elective-share math under Florida law, especially in blended families.
• Have both states’ counsel review the plan together before you rely on it.

Snowbird life should be about the weather, not about which court your family ends up in. A plan built deliberately for two states gives you the Florida tax advantages while protecting the spouse and heirs you actually intend to provide for.

Frequently Asked Questions

Do I have to choose between Florida and my northern state as my legal residence?

For estate and income-tax purposes you have one domicile, even though you can own homes in several states. Most snowbirds aim to make Florida their domicile because Florida has no state income or estate tax. To make it stick, file a Declaration of Domicile, claim Florida homestead, get a Florida license, register to vote here, and spend the majority of the year in Florida with records to prove it.

Will my will and trust from my other state still work after I move to Florida?

Usually a will validly signed in another state is recognized in Florida, but execution formalities, personal-representative qualifications, and powers of attorney differ. Florida’s durable power of attorney and elective-share rules are particularly distinct. Have a Florida attorney review your documents once you establish domicile so they use Florida statutory language and name a qualified representative.

How do I avoid probate in two different states?

Owning real estate in two states typically triggers a primary probate where you’re domiciled plus a separate ancillary probate where the out-of-state property sits. The cleanest solution is a revocable living trust holding both properties, so a successor trustee distributes everything without probate in either state. A Florida Lady Bird deed can also keep the Florida home out of probate.

How does Florida's elective share affect a surviving spouse differently than my old state?

Florida gives a surviving spouse 30% of a broadly defined elective estate under Florida Statutes 732.201 to 732.2155, reaching trust assets, joint accounts, and payable-on-death property — not just the probate estate. Northern states use different percentages and definitions, so a plan built around another state’s rules can produce a very different result in Florida, especially in blended families. The deadline to elect is short, so act quickly.

Can Florida homestead law override my will when leaving the house to my children?

Yes. Under Article X, Section 4 of the Florida Constitution, if you’re survived by a spouse or minor child you generally cannot freely devise your homestead. The surviving spouse may receive a life estate or a one-half interest depending on the elections made. This is a frequent surprise for dual-state couples and should be addressed directly in the plan.

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.

You Likely Need a Will If…

Ask yourself these questions. If you answer yes to any, a will should be a priority:

• You have minor children and want to name a guardian.
• You own a home, condo, or other real estate in Miami-Dade in your name alone.
• You want to leave specific items or amounts to specific people.
• You have a blended family or want to provide for someone who is not a default heir.
• You want to choose who administers your estate rather than leave it to a court.

What Happens Without One

If you die without a will, Florida’s intestacy statutes (Chapter 732) decide who inherits. The state’s formula may not match your wishes, especially in blended families, and it gives you no say over who serves as personal representative or guardian of your children. A will lets you take that control back.

What a Will Cannot Do

A will is powerful but limited. It does not control assets that pass by beneficiary designation or joint titling, such as life insurance, IRAs, and payable-on-death accounts. It also does not avoid probate; in fact, a will is the document that gets administered through Miami-Dade probate court. Understanding these limits keeps your expectations realistic.

When a Trust May Be Better

If avoiding probate, maintaining privacy, or planning for incapacity matters to you, a revocable living trust (Chapter 736) may do more than a will alone. Many Miami families use a will and a trust together, with the will acting as a backup that catches anything left outside the trust.

Don’t Forget the Homestead

Your Florida homestead is special. Constitutional protections (Art. X, Section 4) shield it from most creditors and restrict how you can leave it if you have a spouse or minor children. A will should be drafted with these rules in mind so it does not unintentionally conflict with them.

The Tax Angle

One worry you can usually set aside: Florida has no state estate or inheritance tax. So the case for a will here is rarely about state taxes; it is about control, guardianship, and a smoother process for the people you leave behind.

The Bottom Line

Almost every adult benefits from at least a simple will, and most Miami homeowners and parents need one. The real question is not whether you need a plan, but how complete it should be.

Talk to a Florida Attorney

Your right answer depends on your specific assets and family. Before deciding a will is enough, or unnecessary, consult a licensed Florida estate planning attorney in the Miami area to map the plan that fits your situation.

I have sat across the table from more than one widow in Miami who believed she was provided for, only to learn that the family home, the brokerage account, or the bulk of the estate had been routed somewhere else by a beneficiary form signed a decade earlier. Most of these outcomes were avoidable. Below are the mistakes I see most often, why they matter under Florida law, and how to keep them from undoing your intentions.

Mistake #1: Treating a Will as the Whole Plan

A will is a starting point, not a finish line. Many people sign one, file it in a drawer, and assume their affairs are handled. The problem is that a will only governs assets that pass through Florida probate—and a surprising share of a typical estate never touches probate at all.

Life insurance, retirement accounts, annuities, payable-on-death (POD) bank accounts, and transfer-on-death (TOD) brokerage accounts all pass by contract to whoever is named on the beneficiary form. Jointly titled property passes by operation of law. Assets held in a living trust pass under the trust. Your will has no authority over any of these. If your will leaves “everything to my spouse” but your 401(k) still names an ex-spouse or a now-adult child, the beneficiary form wins. Every time.

The fix is to treat the will, trust, beneficiary designations, and titling as a single coordinated system. When one piece changes—a marriage, a divorce, a new account—every other piece should be checked for consistency.

Mistake #2: Ignoring Florida’s Elective Share and Spousal Rights

This is the trap that catches surviving spouses most often, and it deserves its own section. Florida does not let you disinherit a spouse by accident—or, in most cases, on purpose. Under Florida Statutes Chapter 732, a surviving spouse is entitled to an elective share equal to 30% of the elective estate. The elective estate is broad: it reaches far beyond the probate estate to include revocable trust assets, certain jointly held property, POD/TOD accounts, and other transfers, so a spouse cannot easily be starved out through clever titling.

Several distinct protections operate at the same time, and they are easy to confuse:

• Elective share (Fla. Stat. § 732.201 et seq.): the surviving spouse’s right to claim 30% of the elective estate, regardless of what the will says.
• Pretermitted (omitted) spouse (Fla. Stat. § 732.301): if you marry after signing your will and the will doesn’t provide for the new spouse, that spouse may take an intestate share unless the omission was intentional or covered by a prenuptial agreement.
• Family allowance and exempt property (Fla. Stat. §§ 732.402, 732.403): a spouse and certain dependents can claim a family allowance (up to $18,000) and exempt property even before general creditors and beneficiaries are paid.

I see two opposite failures here. In the first, a spouse is unintentionally shortchanged because the deceased never understood these rights existed and structured everything to bypass probate—only for the survivor to discover the elective share is available but the clock is ticking. The election must generally be made within roughly six months of being served with the notice of administration (or two years from the date of death, whichever is earlier). Miss the window and the right can be lost. In the second failure, a person in a second marriage tries to leave assets to children from a first marriage without realizing the new spouse can override that plan unless rights are properly waived. If you intend to depart from these defaults, you generally need a valid, fully disclosed prenuptial or postnuptial agreement. A vague gentleman’s understanding is worth nothing in probate court.

Mistake #3: Mishandling Florida Homestead

Florida homestead is its own area of law, and it trips up even sophisticated planners. The Florida Constitution (Article X, Section 4) and Fla. Stat. § 732.4015 restrict how you can devise a homestead if you are survived by a spouse or minor child. You cannot simply leave the homestead to whomever you like.

If you are survived by a spouse and have no minor children, you may devise the homestead to the spouse outright. But if you try to leave it to someone else, the surviving spouse takes a life estate, with a remainder to your descendants—unless the spouse instead elects to take a one-half tenancy-in-common interest. If you are survived by a minor child, you generally cannot devise the homestead at all. People who put their homestead into a revocable trust, or who name their children as remaindermen without accounting for these rules, frequently create a tangle that only litigation can resolve.

Homestead also carries powerful creditor protection and property-tax benefits that can be inadvertently forfeited by careless transfers. Before retitling a Florida home—into a trust, to a child, or anyone else—confirm how the move affects homestead status, the protections that come with it, and the devise restrictions above. For families weighing whether to keep a home in the estate or transfer it during life, the mechanics resemble the planning behind , where keeping a life interest changes both control and tax treatment.

Mistake #4: Stale and Conflicting Beneficiary Designations

If I could fix one document in most people’s plans, it would be the beneficiary forms. They are the silent governors of the estate, and they are almost always out of date.

Common failures:

1. Naming an ex-spouse. Florida law (Fla. Stat. § 732.703) automatically voids many beneficiary designations in favor of a former spouse after divorce, but this rule has carve-outs—federally governed ERISA plans, for instance, may not be covered—so never rely on it as a substitute for updating the form yourself.
2. Naming a minor directly. A minor cannot legally receive a large insurance or retirement payout; a court guardianship may be required, which is expensive and slow. Name a trust or a custodian instead.
3. Naming the estate. Routing a retirement account to “my estate” drags it through probate and can accelerate income tax. Name individuals or a properly drafted trust.
4. Leaving blanks. No contingent beneficiary means the asset may default into the estate or to the institution’s order of distribution.

Review every designation after any major life event and at least every few years. It takes minutes and prevents the most common disasters I litigate.

Mistake #5: Planning Only for Death, Not Incapacity

Estate planning is not only about who gets what after you die. It is equally about who acts for you while you are alive but unable to act for yourself. Without a durable power of attorney, a health care surrogate designation, and a living will, your family may have to open a court guardianship to pay your bills or make medical decisions—a public, costly, and slow process.

Florida’s durable power of attorney statute (Fla. Stat. Chapter 709) is demanding. Florida does not recognize “springing” powers that activate only upon incapacity in the way some states do; the document must be carefully drafted, and certain “superpowers”—like making gifts or changing beneficiary designations—must be separately initialed by the principal to be valid. A form downloaded from the internet often fails these requirements precisely when the family needs it most.

Mistake #6: Set-It-and-Forget-It Planning

Laws change. Families change. The federal estate-and-gift tax exemption, account values, marriages, divorces, births, and deaths all shift the ground under your plan. A trust drafted for a tax world that no longer exists, or one that names a trustee who has since passed away, can be worse than no plan at all.

For specialized goals—preserving Medicaid eligibility, providing for a disabled loved one, or sheltering certain income—the structure matters enormously. A is one example of a tool that can protect benefits while still serving a beneficiary, and it illustrates why off-the-shelf documents rarely fit complex situations. Florida families with these needs should have their plans reviewed by counsel who handle them regularly, such as a dedicated team.

Mistake #7: DIY Documents and No Professional Review

Florida has strict execution formalities. A will generally must be signed at the end by the testator in the presence of two witnesses, who must sign in the presence of the testator and of each other (Fla. Stat. § 732.502). Get the ceremony wrong and the document may be invalid—a defect that only surfaces after death, when it cannot be fixed. Self-proving affidavits, proper notarization, and original signatures all matter. The few hundred dollars saved with a kit form is frequently dwarfed by the cost of the litigation it triggers.

How to Audit Your Own Plan

Run this quick check, ideally with an attorney:

• Pull every beneficiary form—life insurance, IRA, 401(k), annuities, POD/TOD accounts—and confirm each one matches your current wishes.
• Confirm how your home is titled and whether your intended devise complies with Florida homestead restrictions.
• If you are married, understand how the elective share interacts with your plan, and whether any waiver exists.
• Verify you have a current durable power of attorney, health care surrogate, and living will.
• Check that your named executor, trustee, and agents are still alive, willing, and appropriate.

None of these mistakes is exotic. They are ordinary oversights that compound quietly until a death forces them into the open. A coordinated, regularly reviewed plan—built around Florida’s homestead and spousal-protection rules rather than in spite of them—is the difference between a smooth administration and years of conflict. If you want a careful set of eyes on yours, schedule a consultation or learn more about Florida wills and trusts before a small error becomes a permanent one.

Frequently Asked Questions

Can I disinherit my spouse in Florida?

Generally no. Under Florida Statutes Chapter 732, a surviving spouse can claim an elective share equal to 30% of the elective estate—which includes much more than just probate assets—regardless of what your will says. The only reliable way to depart from this default is a valid, fully disclosed prenuptial or postnuptial agreement waiving those rights.

What is the most common Florida estate planning mistake?

Stale or conflicting beneficiary designations. Life insurance, retirement accounts, and POD/TOD accounts pass by contract to whoever is named on the form, overriding your will entirely. An outdated form naming an ex-spouse, a minor, or your estate can redirect the bulk of an estate away from your intended heirs.

How does Florida homestead affect my will?

Florida law restricts how you can leave your homestead if you are survived by a spouse or minor child. You cannot freely devise it; a surviving spouse may receive a life estate or elect a one-half interest, and you generally cannot devise the home at all if you have a minor child. Retitling a homestead carelessly can also forfeit creditor and tax protections.

How long does a surviving spouse have to claim the elective share in Florida?

The election must generally be made within about six months of being served with the notice of administration, or within two years of the date of death—whichever is earlier. Missing this deadline can permanently forfeit the right, so a surviving spouse should consult an attorney promptly.

Do I need more than a will for a complete Florida estate plan?

Yes. A complete plan also addresses incapacity through a durable power of attorney, a health care surrogate designation, and a living will. Without these, your family may have to open a costly court guardianship. Depending on your goals, a trust may also be appropriate to avoid probate and provide for specialized needs.

I have watched profitable Florida companies stall for months because the founder died without a plan and the operating account froze the moment the bank learned of the death. I have also seen a surviving spouse, entitled to a share of the estate under Florida law, end up locked in litigation with the deceased’s business partner because nobody thought through how those two interests would coexist. The good news is that nearly every one of these crises is avoidable with deliberate planning.

Why Business Owners Need a Different Kind of Estate Plan

A salaried employee’s estate plan is mostly about distributing assets. A business owner’s plan has to do that and keep an operating enterprise alive at the same time. Those are competing goals. Your company needs continuity of management and access to cash; your heirs need fairness and liquidity. The plan’s job is to reconcile them before a crisis forces the issue.

Three pressures make this harder in Florida specifically:

• Illiquidity. Most of the value is locked inside the business. Heirs cannot pay bills with a 40% membership interest in an LLC.
• Control versus economics. The child who runs the business and the child who does not may both deserve value, but only one should hold the voting interest.
• Spousal rights. Florida’s elective share and homestead protections can override what your will says, and they interact with business assets in ways that surprise people.

Ignore any one of these and the plan looks fine on paper but breaks under real conditions.

The Elective Share and Your Business: A Florida Trap

This is where many business owners get blindsided, and it deserves its own section. Under Florida Statutes Chapter 732, a surviving spouse who is not adequately provided for can claim an elective share equal to 30% of the elective estate (see Fla. Stat. § 732.2065). Critically, the elective estate is not just the property that passes under your will. It is an expanded pool that can reach assets you thought were outside probate—including, under the rules in Fla. Stat. § 732.2035, the value of certain business interests and property you transferred during life while retaining control.

Picture a founder who leaves his entire LLC interest to the son who works in the business and assumes his second wife is taken care of by a separate life insurance policy. If that policy does not satisfy the elective share, the wife can elect against the estate, and the value of the business interest may be pulled into the calculation. Suddenly the son owes a substantial cash payment to satisfy his stepmother’s 30%—cash the company does not have. The succession plan and the spousal plan were never reconciled.

You can plan around this. Spouses can waive or modify elective-share rights through a valid prenuptial or postnuptial agreement under Fla. Stat. § 732.702. You can fund the spousal share with liquid assets or life insurance held outside the business so heirs are not forced to liquidate equity. And the elective-share trust permitted under Fla. Stat. § 732.2025 lets you satisfy the share through a qualifying trust rather than an outright cash transfer. The point is to decide deliberately, not to discover the conflict at the funeral.

Buy-Sell Agreements: The Cornerstone of Business Succession

If you own a business with partners, the single most important succession document is usually not your will—it is the buy-sell agreement. This is the contract among owners (or between owners and the entity) that governs what happens to an interest when an owner dies, becomes disabled, divorces, or wants out.

A well-drafted buy-sell does several jobs at once:

1. Sets the price. It fixes a valuation method—fixed price, formula, or independent appraisal—so survivors are not fighting heirs over what the interest is worth.
2. Names the buyer. It says whether the entity redeems the interest (an entity-purchase plan) or the remaining owners buy it (a cross-purchase plan).
3. Provides the funding. Most buy-sells are funded with life insurance so the money is there when the trigger event hits. Without funding, the obligation to buy is just a promise nobody can keep.
4. Restricts unwanted owners. It keeps a deceased owner’s spouse or children from becoming your new, unwanted business partner.

That last point matters in community-property thinking even in an equitable-distribution state like Florida. Without a buy-sell, your partner could die and you could find yourself co-managing the company with his widow, who has every legal right to her late husband’s interest but no interest in running the business. A buy-sell converts that interest into cash for the widow and full control for you.

Choosing the Right Structure for Transfer

How the business is owned shapes how it passes. A few of the most common tools:

Revocable Living Trusts

Holding your business interest in a revocable trust keeps it out of probate, which is the difference between your successor managing the company the next morning and waiting weeks for a court to appoint a personal representative. The trust names a successor trustee who steps in immediately on death or incapacity. For a Florida operating business, that continuity of control is often worth more than the tax planning.

Irrevocable Trusts and Gifting

For larger estates, moving business equity into an irrevocable trust—sometimes a grantor-retained annuity trust or an intentionally defective grantor trust—can shift future appreciation out of your taxable estate. With the federal estate-tax exemption scheduled to drop after 2025, owners of growing companies should revisit whether locking in today’s exemption through lifetime gifts makes sense. Florida imposes no state estate tax, so federal planning is the whole game here.

Family Limited Partnerships and LLCs

These let you transfer economic value to children over time while retaining management control through general-partner or manager status, and they can support legitimate valuation discounts. They must be run as real businesses, not paper shells, or the IRS will unwind the discounts.

Florida-specific asset-protection trusts and Medicaid planning often intersect with this work, particularly for owners thinking about long-term care. Our colleagues in New York have a detailed explanation of how a shields assets while preserving eligibility—the principles translate closely to Florida planning, and for disabled beneficiaries a can preserve both benefits and a stream of support.

Planning for Incapacity, Not Just Death

Owners obsess over what happens when they die and forget the more likely event: a stroke, an accident, or a slow decline that leaves them alive but unable to sign. If you are the sole manager of your LLC and you lose capacity, who signs payroll? Who renews the lease? Who talks to the bank?

The answers come from a few documents Florida law makes available:

• A durable power of attorney under Fla. Stat. Chapter 709, drafted with specific business authority—Florida’s statute requires that certain powers be expressly enumerated, so a generic form will not do.
• Successor-manager or successor-trustee provisions in your operating agreement and trust that activate on incapacity without a court hearing.
• A designation of health care surrogate and living will so personal medical decisions never collide with business decisions.

Build the incapacity plan with the same care as the death plan. Incapacity is the contingency that actually paralyzes companies.

Coordinating the Personal and Business Plans

The recurring theme in every failed succession I have handled is a disconnect: the lawyer who drafted the operating agreement never spoke to the lawyer who drafted the will, and the life insurance agent funded the wrong plan. Coordination is the deliverable.

A coherent plan ties together your will or trust, your buy-sell, your entity documents, your beneficiary designations, your insurance, and any marital agreement—so they all tell the same story. When a surviving spouse’s elective share, a partner’s buy-out right, and a child’s inheritance all draw on the same pool of value, somebody has to do the math in advance and make sure there is enough liquidity to satisfy everyone without a fire sale.

For Florida owners specifically, our firm’s handles this coordination end to end, and you can review the basics of Florida wills and what to expect from Florida probate before we meet. If you are ready to start, schedule a consultation and bring your operating agreement and any existing buy-sell—those two documents tell us most of what we need to know.

A Short Checklist Before You Sit Down With Counsel

• Who runs the business if you cannot, starting tomorrow morning?
• Is there a funded buy-sell agreement, and when was the valuation last updated?
• Has your spouse waived or been provided for against the elective share?
• Is there enough liquid cash or insurance to pay heirs and taxes without selling the company?
• Do your trust, will, entity documents, and beneficiary designations agree with one another?

If you cannot answer all five with confidence, your plan has a gap—and gaps in a business owner’s estate plan tend to surface at the worst possible moment.

Frequently Asked Questions

Does a will control what happens to my Florida business when I die?

Often only partly. A will passes ownership through probate, which can freeze company accounts and delay management for weeks. A buy-sell agreement, operating agreement, and trust usually control the practical transfer of a business far more directly than a will, and the surviving spouse’s elective-share rights under Florida Statutes Chapter 732 can override your will’s terms. The documents must be coordinated.

Can my spouse's elective share reach my business interest in Florida?

Yes. Florida’s elective share is 30% of an expanded ‘elective estate’ that, under Fla. Stat. § 732.2035, can include the value of business interests and certain lifetime transfers, not just probate property. A spouse can waive these rights in a valid prenuptial or postnuptial agreement (Fla. Stat. § 732.702), and you can fund the share with liquid assets so heirs are not forced to sell company equity.

What is a buy-sell agreement and why do I need one?

It is a contract among co-owners that controls what happens to an ownership interest when an owner dies, becomes disabled, divorces, or exits. It sets the price, names who buys the interest, provides funding (usually life insurance), and prevents a deceased owner’s family from becoming your unwanted business partner. For owners with partners, it is typically the single most important succession document.

Should I put my business in a revocable living trust?

For most Florida operating businesses, yes. A revocable trust keeps the interest out of probate and names a successor trustee who can step in immediately on death or incapacity, giving the company continuity of control. Larger estates may layer in irrevocable trusts or family entities for estate-tax and asset-protection goals, but the core benefit of the revocable trust is avoiding the probate freeze.

What happens to my company if I become incapacitated rather than die?

Without planning, the business can be paralyzed because no one is authorized to sign. A durable power of attorney under Fla. Stat. Chapter 709 with expressly enumerated business powers, plus successor-manager provisions in your operating agreement and trust, lets a chosen person act immediately without a court guardianship proceeding. Incapacity planning is at least as important as death planning.

I have sat across the table from too many Miami families who discovered, in the worst week of their lives, that they could not get into a parent’s email, could not pause a deceased spouse’s subscriptions draining the bank account, and could not even confirm what financial accounts existed because the paper statements had stopped years ago. Digital assets are no longer a footnote. For most Floridians, they are now a meaningful part of the estate, and surviving spouses in particular feel the gaps most sharply.

What Counts as a Digital Asset in Florida

The term is broader than people assume. It is not limited to cryptocurrency or some niche tech holding. A “digital asset” is generally any electronic record in which you have a right or interest. In practice, the categories I see in real estates include:

• Financial and payment accounts — online banking, brokerage logins, PayPal, Venmo, Zelle history, and cryptocurrency wallets held on exchanges like Coinbase or in cold storage.
• Communications — email accounts (often the master key to everything else), text and voicemail archives, and messaging apps.
• Loyalty and stored value — airline miles, hotel points, credit card rewards, and gift card balances.
• Income-producing accounts — a YouTube channel, an Etsy or eBay shop, an Amazon seller account, a monetized blog, or a business’s social media presence.
• Personal and sentimental files — photos and videos stored in iCloud, Google Photos, or Dropbox, which families fight over more than money.
• Subscriptions and recurring billing — streaming services, software licenses, domain registrations, and cloud storage that keep charging long after death.

One distinction matters more than any other. Florida law, following the uniform act, separates the content of electronic communications (the actual body of your emails and messages) from the catalogue (the metadata: who you emailed, when, the subject lines). The content is treated as the most private and is the hardest for a fiduciary to reach. A planning document that addresses one but not the other can leave your representative half-equipped.

How Florida’s Fiduciary Access to Digital Assets Act Works

Florida adopted the Revised Uniform Fiduciary Access to Digital Assets Act, codified as Chapter 740, Florida Statutes, effective July 1, 2016. The statute was the legislature’s answer to a real conflict: federal privacy laws and provider contracts were designed to keep strangers out of your accounts, but they were also keeping out the very people a probate court had just appointed to wind up your affairs.

Chapter 740 resolves that tension through a clear order of priority. It tells custodians (the companies holding your accounts) whose instructions to follow when disclosing digital assets to a fiduciary. The hierarchy works like this:

1. An online tool, if you used one. If a provider offers a built-in setting that lets you name who can access your account after death, your choice there controls, and it overrides what your will says. Google’s Inactive Account Manager and Facebook’s Legacy Contact are the two best-known examples.
2. Your estate planning documents, if you did not use an online tool. A directive in your will, trust, or power of attorney that grants or limits access to digital assets is honored next. This is where good drafting earns its keep.
3. The provider’s terms-of-service agreement, if you did neither. When you are silent, the click-through contract you accepted years ago decides everything, and most of those contracts default to denial or deletion.

The statute also gives a properly authorized fiduciary protection under Florida’s computer crime laws (Chapter 815), so that accessing the account is treated as authorized rather than as unlawful intrusion. That protection only exists, however, when the authority is real and documented. A grieving spouse who guesses a password and logs in is not protected the same way an appointed fiduciary acting under a clear directive is.

Why a Court Appointment Alone Is Not Enough

This is the point clients find most counterintuitive. Being named personal representative in the will, or even receiving Letters of Administration from a Florida probate court, does not automatically open every account. For the content of private communications especially, many custodians will demand language showing that you consented to disclosure, or a court order specifically directing it. If your documents are silent, your representative may be forced to file a separate petition, which costs time and money and is not always granted. Planning ahead is dramatically cheaper than litigating access after the fact.

Special Concerns for Surviving Spouses and the Elective Share

Surviving spouses in Florida have rights that depend on knowing what the estate actually holds, and digital assets can hide value that affects those rights. The Florida elective share, under Chapter 732, gives a surviving spouse a claim to thirty percent of the elective estate. The elective estate is not just the probate assets; it reaches a broad pool that can include certain accounts, transfers, and property interests.

Here is the practical problem. If a portion of a spouse’s wealth lives in a cryptocurrency wallet, a monetized online business, or a brokerage account that only ever sent electronic statements, a surviving spouse may not even know it exists. You cannot claim your share of an asset you cannot find. I have seen elective-share calculations turn on whether anyone could locate a wallet’s recovery phrase. When that phrase is lost, the value is effectively destroyed, not just hidden.

For blended families and second marriages, the stakes climb higher. A surviving spouse and adult children from a prior marriage may both have legitimate claims, and a buried digital account becomes a flashpoint. Sound planning protects the surviving spouse’s ability to identify, value, and claim what the law already entitles them to. If you want a fuller picture of how spousal protections fit together, our overview of Florida wills and spousal rights walks through how these pieces interact, and you can also review how the elective share is handled during Florida probate administration.

Practical Steps to Protect Digital Assets in Your Plan

You do not need to be a technologist to do this well. You need a method and the right legal authority behind it.

• Inventory what you have. Build a running list of accounts, providers, and where each one lives. Do not write passwords into your will, which becomes a public record in probate. Keep credentials in a secure password manager and tell your fiduciary how to reach it.
• Use the online tools. Set up Google’s Inactive Account Manager and Facebook’s Legacy Contact now. Because Chapter 740 gives those settings top priority, they are the most reliable instructions you can leave.
• Add explicit digital-asset language to your documents. Your will, your revocable trust, and especially your durable power of attorney should authorize your fiduciary to access, manage, and close digital accounts, and should expressly consent to disclosure of the content of electronic communications.
• Plan for incapacity, not just death. A durable power of attorney that addresses digital assets lets an agent act while you are alive but unable, which is just as important as post-death access. This is core elder-law territory.
• Handle cryptocurrency deliberately. Whoever inherits a wallet needs the keys or recovery phrase. Store them securely and leave clear, non-public instructions on retrieval. Coins with lost keys are gone forever.
• Revisit it. You open new accounts every year. A digital inventory reviewed every couple of years stays useful; one written once and forgotten does not.

Coordinating Digital Assets With Trusts and Cross-State Planning

For higher-value or income-producing digital holdings, a revocable living trust is often the cleaner vehicle. Funding an asset into a trust keeps it out of public probate and lets your successor trustee step in with continuity, which matters when an online business or monetized channel would lose value during a gap in management. The same logic that applies to a brokerage account or a rental property applies to a profitable digital asset, and the team at Morgan Legal regularly structures to hold exactly these kinds of accounts so management never pauses.

Incapacity planning deserves the same care. When digital authority is woven into a durable power of attorney and coordinated with a trust, an agent or trustee can keep accounts current, stop fraudulent charges, and preserve value the moment you are unable to act. Our colleagues who focus on see firsthand how a well-drafted power of attorney prevents the lockout that otherwise follows a stroke or a dementia diagnosis.

Many Miami families also hold property or accounts in more than one state, and a New York connection is common. Coordinating Florida documents with New York counsel avoids conflicting instructions and duplicate probate. For clients whose planning sits squarely in Florida, the can build the digital-asset provisions directly into your will, trust, and power of attorney so everything points the same direction.

Bringing It Together

Digital assets reward the same discipline as the rest of estate planning: identify what you own, decide who should control it, and put legal authority behind that decision before a crisis arrives. In Florida, Chapter 740 hands you the tools, but the law only works if your documents and online settings actually use them. For surviving spouses, that planning is also the difference between knowing the full estate and being shut out of value the elective share was meant to protect. If your current plan is silent on email, cloud storage, crypto, or online accounts, it is incomplete. Reach out to our Miami estate planning office to make sure the people you trust will not be locked out when it matters most.

Frequently Asked Questions

Does my Florida will automatically give my executor access to my online accounts?

Not necessarily. Even with Letters of Administration from a Florida probate court, many providers will deny access to the content of private communications unless your documents expressly consent to disclosure under Chapter 740, or a court orders it. A will that is silent on digital assets can leave your personal representative locked out, so the access language needs to be drafted in on purpose.

What is the Florida Fiduciary Access to Digital Assets Act?

It is Chapter 740 of the Florida Statutes, effective July 1, 2016, which lets fiduciaries such as personal representatives, trustees, and agents under a power of attorney access a person’s digital assets. It sets a priority order: an online tool you used controls first, then a directive in your will, trust, or power of attorney, and finally the provider’s terms-of-service agreement if you left no instructions.

Can a surviving spouse's elective share include digital assets like cryptocurrency?

Yes. Florida’s elective share under Chapter 732 entitles a surviving spouse to thirty percent of the elective estate, and that pool can reach value held in cryptocurrency, online brokerage accounts, or a monetized digital business. The practical challenge is locating and valuing those assets, which is why a clear digital inventory protects a surviving spouse’s rights.

Where should I store my passwords if not in my will?

Never put passwords in your will, because a will filed in probate becomes a public record. Use a reputable password manager or a sealed, secure document, and make sure your fiduciary knows how to access it. Pair that with proper authority in your will, trust, and durable power of attorney so the access is legally valid, not just technically possible.

What happens to my digital assets if I become incapacitated rather than die?

A durable power of attorney that specifically addresses digital assets lets your agent manage your accounts while you are alive but unable to act. Without that language, an agent may be unable to stop fraudulent charges, pay bills, or preserve an online business, which is why incapacity planning for digital assets is just as important as post-death planning.

I have practiced estate planning and probate in Miami long enough to see the same painful pattern repeat. Someone gets divorced, remarries, or moves to Florida from New York, New Jersey, or Illinois, and assumes the old paperwork still works. Years later, a probate court reads that old paperwork literally. By then it is too late to ask what they really wanted.

Why Life Events Break an Otherwise Good Estate Plan

An estate plan is a snapshot of one moment: who you trusted, who depended on you, what you owned, and which state’s law governed it all. Divorce, marriage, and relocation each move that snapshot out of focus in a different way.

• Divorce removes a spouse from your life but not always from your documents. Florida law revokes certain provisions in favor of an ex-spouse, but it does not catch everything.
• Marriage creates a new spouse with powerful statutory rights — including the elective share and homestead protections — that your existing plan may completely ignore.
• Moving to Florida changes the governing law. A will valid in your old state is usually still valid here, but its mechanics, your fiduciary choices, and your tax picture may no longer fit.

The thread connecting all three is the same: documents drafted for an old reality, applied to a new one.

Updating Your Estate Plan After Divorce in Florida

Divorce is the change most people assume takes care of itself. It partly does, and that partial protection is exactly what makes it dangerous.

What Florida law revokes automatically

Under Florida Statutes § 732.507(2), any provision of your will that affects your spouse is treated as void as if the former spouse had died at the time of the divorce. A parallel rule, Florida Statutes § 732.703, voids the designation of a former spouse as beneficiary on certain assets — including some life insurance, annuities, and payable-on-death accounts — after the marriage ends. So if your old will leaves everything to a spouse you have since divorced, the gift to that ex-spouse generally fails by operation of law.

What does not get fixed for you

The automatic revocation statutes are narrower than people expect, and they leave real exposure:

• Federal assets often override state law. Employer 401(k) plans and pensions governed by ERISA follow the named beneficiary on file. Federal preemption can keep your ex-spouse as the recipient regardless of what Florida says. You must change the designation with the plan administrator yourself.
• Revocable trusts and ancillary documents are not always swept up cleanly. If your ex-spouse is still named as a successor trustee, your agent under a power of attorney, or your health care surrogate, those roles can survive unless you revoke them.
• Naming a replacement is on you. The statute removes the ex-spouse but does not appoint anyone in their place. If you named no contingent beneficiary, executor, or trustee, the court fills the vacancy under default rules — which may not be your choice at all.

After a divorce, the cleanest path is a full refresh: a new will, a restated or new revocable trust, fresh powers of attorney and health care directives, and a line-by-line audit of every beneficiary designation. Do not rely on the statute to be your estate planner.

Updating Your Estate Plan After Marriage or Remarriage

Marriage is the opposite problem. Instead of an outdated person lingering in your documents, you now have a new person with rights your documents may never mention — and Florida gives spouses some of the strongest protections in the country.

The elective share: a spouse you cannot fully disinherit

Florida’s elective share, governed by Florida Statutes §§ 732.201–732.2155, entitles a surviving spouse to 30% of the elective estate. The elective estate is intentionally broad. It reaches well beyond the probate estate to include assets people assume are “off the table” — revocable trust property, certain jointly held accounts, payable-on-death and transfer-on-death assets, and other nonprobate transfers.

This matters enormously for blended families. Suppose you remarry and intend to leave your estate to your children from a prior marriage, funneling everything through a revocable trust to skip the will entirely. Many people believe that quietly defeats a new spouse’s claim. It does not. The elective share is calculated against the elective estate, and your surviving spouse can elect against it. If you want to direct assets to your children while honoring — or deliberately structuring around — your spouse’s rights, that takes a real plan, not silence.

Homestead: the most over-promised property in Florida

Florida’s homestead protection under Article X, Section 4 of the Florida Constitution and Florida Statutes § 732.401 restricts how you can devise your primary residence if you are survived by a spouse or minor child. A common surprise: you generally cannot leave your homestead outright to your children if you have a surviving spouse. Where the constitutional restrictions apply, an improper devise can fail, and the property passes by default — typically a life estate to the spouse with a remainder to the descendants, or, by statute, an undivided one-half tenancy-in-common interest if the spouse so elects. A married couple’s homestead plan should be drafted by someone who knows these rules cold, because a single misstep rewrites who lives in the house.

Prenuptial and postnuptial agreements

Spouses can waive the elective share and certain homestead and family-allowance rights through a valid marital agreement under Florida Statutes § 732.702. If a prenup or postnup is part of your marriage, your estate plan and that agreement must be read together — and consistently. A will that contradicts a marital agreement is a lawsuit waiting to happen.

After marriage, update your will and trust to name your spouse where you intend, add or update beneficiary designations and your health care surrogate, and decide deliberately how your plan interacts with the elective share and homestead — rather than discovering those rights in a courtroom after you are gone.

Updating Your Estate Plan After Moving to Florida

New residents are some of my most common — and most relieved — clients. The relief comes when they learn their old will is probably still valid here. The work comes from everything around it.

Your old will is valid, but the machinery may not fit

Under Florida Statutes § 732.502(2), a will that was validly executed under the laws of the state where it was signed is generally recognized as valid in Florida. One major exception: a holographic will (handwritten and unwitnessed) or a nuncupative (oral) will is not valid here even if your prior state honored it. Beyond raw validity, several practical issues surface:

• Out-of-state personal representatives. Florida restricts who can serve as personal representative (executor). A nonresident generally must be a close relative — a spouse, child, parent, sibling, or certain other family — to qualify under Florida Statutes § 733.304. The trusted out-of-state friend named in your old will may not be eligible to serve.
• Self-proving affidavits. Florida’s self-proving format under § 732.503 lets a will be admitted without tracking down witnesses. Re-executing your documents in Florida form smooths the eventual probate.
• Powers of attorney. Florida’s durable power of attorney statute, Chapter 709, has specific requirements (including two witnesses and a notary for many powers). Banks and title companies here often balk at out-of-state forms. A Florida-compliant document avoids fights at the worst possible moment.
• Health care directives. Florida uses its own designation of health care surrogate and living will forms under Chapter 765. Update these so a Florida hospital recognizes your agent without hesitation.

The tax and homestead upside of becoming a Floridian

Florida has no state income tax and no state estate or inheritance tax, which is part of why so many people move here. To capture the benefits, you have to genuinely establish Florida domicile — file a declaration of domicile, register to vote, get a Florida driver’s license, and claim the homestead exemption on your residence. High-net-worth families relocating from high-tax states should treat domicile as a deliberate project, not an afterthought, especially if a former state may contest residency.

If you still own real property in another state, that out-of-state real estate will typically require an ancillary probate there unless it is held in a trust or another transfer structure. Coordinating across states is one of the most common reasons new residents end up restructuring rather than just re-signing. Many of our clients keep property up north, and tools like a properly drafted trust or a can keep that property out of a second probate entirely. The same coordination applies to the document at the center of it all — your — which should be aligned with, not contradicted by, your new Florida plan.

A Practical Checklist When Life Changes

Whatever the trigger, the review process follows a consistent order. Walk through it after any divorce, marriage, or move:

1. Re-read your will and confirm beneficiaries, the personal representative, and any guardian nominations for minor children still reflect reality.
2. Review every trust — successor trustees, beneficiaries, and distribution terms — and confirm the trust is actually funded.
3. Audit beneficiary designations on life insurance, retirement accounts, annuities, and payable-on-death or transfer-on-death accounts. These pass outside your will and are the most commonly forgotten.
4. Refresh your incapacity documents — durable power of attorney, health care surrogate, and living will — in Florida-compliant form.
5. Check your homestead and titling. How your home and accounts are titled can override your will entirely.
6. Reconcile against any marital agreement so your plan and your prenup or postnup say the same thing.
7. Confirm domicile if you have moved, and address any out-of-state property to avoid ancillary probate.

When to Bring in a Florida Estate Planning Attorney

Some updates are simple. Many are not, and the cost of getting them wrong is paid by the people you love, after you can no longer fix it. Blended families, surviving-spouse and elective-share planning, Florida homestead, and multi-state property all reward professional drafting and punish do-it-yourself shortcuts. If you have recently divorced, married, or relocated to South Florida, this is the moment to act — not someday.

Our firm helps Miami families update wills, trusts, and incapacity documents so they hold up under Florida law and in Florida probate court. You can learn more about our approach to , explore the specifics of Florida wills, understand what happens in Florida probate, or simply contact our office to start the conversation. The review costs you an afternoon. The mistake it prevents could cost your family far more.

Frequently Asked Questions

Does divorce automatically remove my ex-spouse from my will in Florida?

Mostly, but not entirely. Under Florida Statutes § 732.507(2), provisions in your will favoring a former spouse are treated as void after divorce, and § 732.703 voids many beneficiary designations naming an ex-spouse. However, ERISA-governed retirement plans and pensions follow the named beneficiary regardless of state law, and roles like trustee, agent, or health care surrogate may survive unless you revoke them. You should still do a full update.

Can I disinherit my spouse in Florida if I leave everything to my children?

Generally no. Florida’s elective share (Florida Statutes §§ 732.201–732.2155) entitles a surviving spouse to 30% of the elective estate, which includes revocable trust assets and many nonprobate transfers — not just probate assets. Homestead rules add further protection. A spouse can only waive these rights through a valid marital agreement. Disinheriting a spouse requires deliberate planning, not silence.

Is my out-of-state will still valid after I move to Florida?

Usually yes. Under Florida Statutes § 732.502(2), a will validly executed in another state is generally recognized in Florida, with an exception for handwritten unwitnessed (holographic) or oral wills. That said, your out-of-state executor may not qualify to serve under § 733.304, and your powers of attorney and health care directives should be redone in Florida-compliant form so local banks and hospitals honor them.

What should I update first after a major life change?

Start with beneficiary designations on retirement accounts, life insurance, and payable-on-death accounts, since those pass outside your will and are the most commonly forgotten. Then review your will, any trusts and their funding, and your durable power of attorney and health care surrogate. Finally, address homestead, titling, and any out-of-state property to avoid a second probate.

Do I need a Florida attorney, or can I use online forms?

Simple changes can sometimes be straightforward, but divorce, remarriage, blended families, elective-share and homestead issues, and multi-state property routinely defeat do-it-yourself tools. Florida’s spousal protections and homestead restrictions are unusually strong, and a single drafting error can rewrite who inherits your home. For any significant life change, a Florida estate planning attorney is worth the consultation.

An irrevocable trust in Florida is a trust you cannot freely amend or revoke once it is signed and funded; in exchange for giving up that control, the assets generally leave your taxable and countable estate. They make sense in a narrow but important set of situations: when you need long-term Medicaid eligibility, shielding from future creditors, life-insurance estate-tax planning, or protection for a beneficiary who cannot manage money. For most Floridians a revocable living trust does the job — but for the right problem, the irrevocable trust is the only tool that actually works.

I practice estate planning in Miami, and the question I hear most often is some version of “should I put my house in an irrevocable trust?” The honest answer is usually “probably not — but let’s talk about what you’re actually worried about.” This article walks through when an irrevocable trust genuinely earns its place in a Florida plan, when it does not, and the surviving-spouse traps that catch people who copy a strategy they read about online.

What “irrevocable” really means under Florida law

Florida trust law lives in Chapter 736 of the Florida Statutes, the Florida Trust Code. Under that code, a trust is revocable only if the settlor reserved the power to revoke it; if you did not reserve that power, the trust is irrevocable by default. So the label is not magic — it comes down to the powers you keep or surrender in the document.

The practical consequence is loss of control. Once you fund an irrevocable trust, you generally cannot:

• Pull the assets back out for your own benefit (depending on trust type);
• Unilaterally change the beneficiaries or the trustee at will;
• Treat the property as “yours” on a Medicaid application or in a lawsuit.

That last point is the whole reason these trusts exist. You are trading control for legal separation. Florida does give you some flexibility after the fact — under section 736.0412, a trust can sometimes be modified by unanimous consent of the trustee and qualified beneficiaries, and section 736.04117 allows decanting (pouring assets from one trust into a new one with better terms) in defined circumstances. But you should never sign an irrevocable trust assuming you can undo it later. Plan as if it is permanent, because functionally it is.

When an irrevocable trust makes sense in Florida

Here are the scenarios where I actually recommend one. Notice the common thread: each involves a goal that a revocable trust or a plain will simply cannot accomplish.

1. Long-term care and Medicaid planning

This is the most common legitimate use. Florida’s Medicaid program for long-term nursing care imposes strict asset limits, and it looks back five years (60 months) at gifts and transfers when you apply. An irrevocable income-only trust — sometimes called a Medicaid asset protection trust — lets you move your home or savings out of your countable estate so that, once the look-back period passes, those assets do not block eligibility for nursing-home coverage.

The catch is timing and discipline. You must give up access to the principal; you typically keep only the right to income. Transfer too late and the look-back penalty bites. This is delicate work, and it is closely related to how elder law attorneys handle in other states — the same income-only architecture appears in the New York , adapted to each state’s transfer rules. Florida’s homestead protections add their own wrinkles, so the design is not interchangeable across state lines.

2. Asset protection from future creditors and lawsuits

Florida already shields a lot — homestead, annuities, and the cash value of life insurance enjoy strong statutory protection. But for professionals exposed to malpractice or business liability, an irrevocable trust can wall off assets before a claim arises. The key word is before. A transfer made to dodge a creditor you already have, or one you can see coming, can be unwound as a fraudulent transfer under Florida’s Uniform Fraudulent Transfer Act (Chapter 726). Asset protection is preventive medicine, not an emergency-room procedure.

3. Irrevocable life insurance trusts (ILITs)

Most Floridians no longer owe federal estate tax — the 2026 exemption sits in the multi-millions per person, and Florida has no state estate tax. But for genuinely high-net-worth families, a death benefit you own is included in your taxable estate. An ILIT owns the policy instead, keeping the proceeds outside your estate and delivering liquidity to pay any tax or equalize inheritances. If your net worth is comfortably under the federal exemption, you almost certainly do not need this.

4. Special needs and spendthrift beneficiaries

A third-party special needs trust — typically irrevocable — lets you provide for a disabled child or grandchild without disqualifying them from SSI or Medicaid. Separately, a trust with a spendthrift clause (expressly authorized under section 736.0502) protects an inheritance from a beneficiary’s own creditors, divorces, or poor judgment. These are among the least controversial uses of irrevocability, because the goal is protection of someone else, not avoidance of your own obligations.

When an irrevocable trust does NOT make sense

I turn away more irrevocable-trust requests than I accept. Common situations where it is the wrong tool:

1. You just want to avoid probate. A revocable living trust avoids probate, keeps your assets fully under your control, and can be changed any time. You give up nothing. See our overview of wills and revocable trusts for the simpler path most families need.
2. You want privacy or to skip the will contest. Again, a revocable trust handles this without locking you in.
3. Your estate is under the federal exemption. Then there is no estate tax to plan around, and an ILIT is overkill.
4. You might need the money. If there is any realistic chance you’ll want the principal back — for medical bills, a move, a change of heart — do not surrender it. Liquidity beats theory.

The recurring mistake is solving a problem you don’t have while creating one you will. Locking up assets to dodge a tax you’ll never owe, or to avoid a probate that a revocable trust handles for free, is a bad trade.

The surviving-spouse trap: irrevocable trusts and Florida’s elective share

This is the part that gets glossed over, and it matters enormously here in Florida. State law protects a surviving spouse with the elective share — under sections 732.201 through 732.2155 of the Florida Statutes, a surviving spouse may claim 30% of the deceased spouse’s “elective estate” regardless of what the will or trust says.

Here is the trap people walk into: they assume an irrevocable trust moves assets safely “out of reach” of a spouse’s claim. Florida’s elective-share statute is deliberately broad. The elective estate reaches back into many transfers and trusts — including certain revocable and irrevocable arrangements — that someone might have hoped would sidestep the spouse. You cannot reliably disinherit a spouse simply by funding a trust.

Two practical takeaways:

• If you are doing the planning: an irrevocable trust set up without coordinating the elective share, or without a valid prenuptial or postnuptial waiver, can trigger litigation that unwinds the very protection you paid for.
• If you are the surviving spouse: do not assume a trust shut you out. The election is time-sensitive — generally six months from service of the notice of administration or two years from death, whichever is earlier — so talk to a lawyer quickly. Our Florida probate page explains how the administration timeline interacts with spousal rights.

I have seen well-meaning irrevocable trusts blow up because no one ran the elective-share math. Coordinating the two is not optional in a Florida plan that involves a marriage.

How an irrevocable trust is structured and taxed

A few mechanics worth understanding before you sign anything:

• You are not the trustee (usually). To get the protection, an independent trustee typically holds and manages the assets. Naming yourself defeats the purpose.
• Funding is everything. An unfunded trust protects nothing. Deeds, beneficiary designations, and account retitling must actually be completed.
• Income tax varies. Some irrevocable trusts are “grantor trusts,” where you still report the income on your personal return; others are separate taxpayers. The design drives the tax result, and it should be intentional.
• Basis matters. Assets you keep until death generally get a stepped-up cost basis. Gifting appreciated property into an irrevocable trust during life can forfeit that step-up — a hidden capital-gains cost that sometimes outweighs the benefit.

None of this is do-it-yourself territory. The form templates floating around online cannot weigh your homestead status, your spouse’s elective share, your Medicaid timeline, and your basis all at once.

Getting it right in Miami

The honest summary: irrevocable trusts are powerful and narrowly useful. For Medicaid eligibility, creditor protection for exposed professionals, estate-tax liquidity for large estates, and protection of vulnerable beneficiaries, nothing else does the job. For ordinary probate avoidance and flexibility, a revocable living trust is almost always the smarter choice. And in any Florida marriage, the elective share has to be part of the conversation from day one.

If you are weighing this decision, we work through it case by case — our Florida team handles these alongside the firm’s broader . Start with what you are actually trying to protect, and let the tool follow the goal. When you are ready to map it out, schedule a consultation and we’ll tell you honestly whether an irrevocable trust belongs in your plan.

This article is general information, not legal advice, and does not create an attorney-client relationship. Trust, tax, and Medicaid rules change; consult a licensed Florida attorney about your specific situation.

Frequently Asked Questions

Can I change or cancel an irrevocable trust in Florida?

Not freely. By design you give up the power to revoke or amend it. However, Florida law offers limited escape hatches: section 736.0412 allows modification with unanimous consent of the trustee and qualified beneficiaries, and section 736.04117 permits decanting in certain cases. You should still treat the trust as permanent when you sign it.

Does an irrevocable trust protect assets from a surviving spouse's elective share?

Not reliably. Florida’s elective share (sections 732.201–732.2155) gives a surviving spouse 30% of the elective estate, and that estate is defined broadly enough to reach back into many trusts. You generally cannot disinherit a spouse by funding a trust unless there is a valid prenuptial or postnuptial waiver. Coordinate the two before signing.

Do I need an irrevocable trust just to avoid probate in Florida?

No. A revocable living trust avoids probate while keeping you in full control and letting you change terms anytime. Irrevocable trusts are for specific goals — Medicaid eligibility, creditor protection, estate-tax liquidity, or protecting a vulnerable beneficiary — not routine probate avoidance.

How does the five-year Medicaid look-back affect an irrevocable trust?

Florida Medicaid reviews asset transfers made within 60 months of your application. Moving assets into an irrevocable Medicaid asset protection trust starts that clock. Transfer too close to needing care and you face a penalty period of ineligibility, so timing the trust years ahead of need is essential.

Will I still owe tax on assets in an irrevocable trust?

It depends on the design. Some irrevocable trusts are grantor trusts, meaning you still report the income personally; others are separate taxpayers. Also watch cost basis — gifting appreciated property into the trust during life can forfeit the step-up at death and create capital-gains exposure. The tax outcome should be intentional, not accidental.