Lady Bird Deeds in a Second Marriage: What About Homestead Rights and the Elective Share?

Harold's Situation: A House He Owned Before Joyce

Harold is 79, lives in Ormond Beach, and has been married to Joyce for eight years. It's a second marriage for both of them. Harold bought the house long before he met Joyce, and he has three grown children from his first marriage. He wants the house to go to his kids when he dies, not to Joyce. (Harold is a composite drawn from situations I see often in this practice, not an actual client.)

A lady bird deed lets an owner keep full control of the property during life, including the right to sell it or change the beneficiary, and then passes the property to named beneficiaries at death without probate. That part is simple. What's not simple is whether Harold can actually use one to route the house to his children when he has a wife who may have her own claim to that same house.

Why Joyce's Homestead Rights Don't Just Disappear

Florida's constitution treats homestead property differently from every other asset a person owns. If a homeowner is married when he dies, and the home qualifies as homestead, the surviving spouse generally has a protected interest in it regardless of what the deed to the property says or what a will says. Depending on the family situation, that protection can give the surviving spouse a life estate in the home or a share of it outright, even if the owner tried to leave the whole house to someone else.

This constitutional protection exists specifically to stop one spouse from writing the other out of the family home. It applies whether the owner tries to do that by will, by trust, or by deed. A lady bird deed does not get a special exemption from this rule just because it avoids probate. If Harold records a lady bird deed naming his three children as beneficiaries and never addresses Joyce's homestead rights, that deed can run headlong into her constitutional interest after he dies.

Can Joyce's Joinder or a Waiver Fix This?

Yes, and this is really the crux of the whole question. Florida law allows a spouse to waive her homestead rights, but the waiver has to be done correctly. A quitclaim deed that doesn't mention homestead at all typically will not count as a waiver. Florida courts have made clear that vague language, or language written for a different purpose (like a postnuptial agreement addressing what happens in a divorce), does not automatically waive what happens to homestead rights at death. The waiver has to be specific, in writing, and it generally works best when it is either built directly into the deed with the right statutory language, or handled through a separate marital agreement that squarely addresses homestead and is signed with the same formality Florida requires for waivers of this kind.

For Harold, this means the lady bird deed by itself, without Joyce's joinder or a valid separate waiver, does not reliably guarantee the house passes only to his children. Whether Joyce has to sign onto the deed itself, or whether a standalone waiver can do the job, is exactly the kind of question that needs a Florida attorney looking at the actual language and the actual facts.

The Elective Share Is a Separate Problem

Even if Harold and Joyce sort out the homestead question, there's a second, independent issue: Florida's elective share. The elective share lets a surviving spouse claim a portion of the deceased spouse's estate, calculated in a specific way under Florida law, regardless of what the will or other documents say. This exists to prevent one spouse from disinheriting the other entirely.

Here's the part that surprises a lot of people: property passing under a lady bird deed is generally counted as part of the elective estate for purposes of this calculation. Because Harold keeps full control over the house during his life, including the right to sell it or change who inherits it, the law treats that retained control as a reason to pull the property back into the pot when figuring Joyce's elective share, even though the deed itself avoids probate.

• A lady bird deed does not remove the house from the elective share calculation.
• Recording the deed does not, by itself, waive Joyce's right to make an elective share claim.
• If Harold wants his children to receive the house free of any elective share claim, that generally has to be handled through a valid waiver of elective share rights, not through the deed alone.

The Prenup or Postnup Route, and What Harold and Joyce Actually Did

For couples in a second marriage who each want their own children to inherit their own property, a properly drafted prenuptial or postnuptial agreement is often the real workhorse, not the deed. A valid marital agreement, signed with the formalities Florida law requires, including full and fair disclosure and often independent counsel for each spouse, can waive both homestead rights and elective share rights. Once that waiver is in place, a lady bird deed can do the job it's good at: passing the house to the children outside of probate, without a homestead or elective share fight waiting at the courthouse.

Harold and Joyce, in this scenario, sat down together and had honest conversations about the house before Harold went to sign anything. They ended up with a postnuptial agreement, drafted with attention to the specific waiver language Florida law expects, in which Joyce agreed to waive her homestead and elective share rights in the Ormond Beach house in exchange for other consideration they worked out between them (in Harold's case, a modest life insurance policy naming Joyce as beneficiary). Only after that agreement was signed did Harold record the lady bird deed naming his three children as beneficiaries.

Because Harold got Joyce's knowing, documented waiver first, his lady bird deed stands a much better chance of doing what he wants it to do. Without that step, the deed alone would have left his children exposed to a claim from Joyce after his death, no matter how clearly the deed named them as beneficiaries.

This article is for general informational purposes only and does not constitute legal advice, nor does reading it create an attorney-client relationship. Florida estate, elder, probate, and real estate law are fact-specific and change over time. Consult a licensed Florida attorney about your individual circumstances. Arthur Simpson, Esq. is licensed to practice law in the State of Florida. Attorney advertising.