Moving to Florida? Update These Legal Documents Now

If you’ve recently relocated to South Florida, congratulations on your move! Along with the excitement of settling in, this is an important time to review your estate planning documents with a Florida-licensed estate planning attorney. Florida has its own statutes governing wills, trusts, healthcare directives, and powers of attorney, and documents drafted in another state may not fully comply with, or take advantage of,  Florida law.

Wills

Florida’s will requirements are stricter than those in many other states. Under Florida Statutes § 732.502, a valid Florida will must be in writing (Florida does not recognize oral or holographic wills), signed by the testator in the presence of two witnesses, and signed by both witnesses in the testator’s presence and in each other’s presence. While notarization is not required, Florida allows a self-proving affidavit to be signed before a notary at the time of execution (Fla. Stat. § 732.503), which can streamline probate by eliminating the need to locate witnesses later.

Florida’s constitutional homestead protections are among the most comprehensive in the country and cannot be overridden by the terms of your will (Art. X, § 4, Fla. Const.; Fla. Stat. § 732.4015). These provisions govern how your primary residence passes at death:

• If you are married and own your home jointly with your spouse, the home passes automatically to your surviving spouse by operation of law.
• If you are married and own your home in your name only and have minor children, your spouse receives a life estate and your minor children receive a vested remainder interest. You cannot leave the home outright to your spouse in this situation — the will provision would be ineffective. If you have no minor children, your spouse inherits the home outright.
• If you are single and have minor children, the home passes to your minor children. Note that placing a Florida homestead into a revocable trust requires careful compliance with Florida law, as improper titling can inadvertently waive the homestead tax exemption and creditor protections.

The homestead laws will override any conflicting provisions in your will regarding the disposition of your home.

Florida law also grants a surviving spouse the right to claim an elective share equal to 30% of the decedent’s elective estate (Fla. Stat. §§ 732.201–.2155). Importantly, the elective estate is broadly defined and includes not only probate assets but also assets passing through certain trusts, beneficiary designations, and joint tenancies. If your estate plan does not adequately provide for your spouse, they may exercise this right regardless of what your will states, which could significantly disrupt your intended distribution plan. 

Durable Power of Attorney

A durable power of attorney (DPOA) authorizes a designated agent to manage your financial and legal affairs if you become incapacitated. Florida’s Power of Attorney Act (Fla. Stat. § 709.2101 et seq.) differs significantly from the laws of many other states and has important implications for new residents. First, Florida does not recognize “springing” powers of attorney — those that activate only upon a future event such as incapacity. A Florida DPOA must be effective immediately upon signing. Second, certain expanded powers — such as creating or amending trusts, making gifts, and changing beneficiary designations — must be specifically enumerated in the document or they are not granted. Third, the document must be signed before two witnesses and a notary public. Florida financial institutions routinely refuse to honor out-of-state DPOAs, which can leave your agent unable to act when time is most critical. A Florida-compliant DPOA is strongly recommended for all new residents.

Living Wills and Healthcare Directives

Florida provides for two separate healthcare planning documents, and new residents should have both. A Designation of Health Care Surrogate (Fla. Stat. § 765.202) appoints an individual to make healthcare decisions on your behalf if you lack capacity — this is the Florida equivalent of a healthcare proxy or medical power of attorney used in other states. A Living Will (Fla. Stat. § 765.302) states your wishes regarding life-prolonging procedures in the event of a terminal condition, end-stage condition, or persistent vegetative state. Many states combine these functions into a single document, so if yours does, you will need both Florida documents. While healthcare providers are generally required to honor out-of-state advance directives under Florida law (Fla. Stat. § 765.112), documents using Florida-specific statutory language will be acted upon more quickly and without dispute — which matters most in an emergency.

Revocable Trusts

Florida will honor a revocable trust validly created under the laws of another state (Fla. Stat. § 736.0403). However, there are good reasons to review yours after relocating. Florida has no state income tax and no state estate or inheritance tax. If your trust was drafted in a state with its own estate tax — such as Massachusetts or Oregon — it may contain bypass trust or credit shelter provisions designed to minimize that tax. Those provisions may no longer be necessary in Florida and could needlessly complicate administration. Your attorney can also confirm that your trustee designations, pour-over will, and any real property held in the trust are properly structured under Florida law.

Anytime you have a major life change — a move, marriage, divorce, birth, or death in the family — your estate plan deserves a thorough review. Huth, Pratt & Milhauser is one of Boca Raton’s premier boutique estate planning law firms. Our attorneys are ready to help ensure your documents comply with Florida law and continue to reflect your wishes. Call us today to schedule a consultation.