Life Estate Deeds in Florida

A life estate deed divides property ownership into two interests: a life estate for the current owner and a remainder interest for the designated beneficiary. The life estate holder retains the right to live in and use the property during their lifetime. When the life estate holder dies, the property passes automatically to the remainder beneficiary (called the remainderman) without probate.

Florida recognizes two types of life estate deeds: traditional life estate deeds and enhanced life estate deeds. An enhanced life estate deed is commonly called a lady bird deed. The enhanced version gives the life estate holder significantly more control over the property and produces better tax results. For nearly every Florida homeowner, an enhanced life estate deed is the better choice.

Traditional Life Estate Deed

A traditional life estate deed grants the life estate holder the right to possess, use, and enjoy the property during their lifetime. However, the life estate holder cannot sell, mortgage, or transfer the property without the remainderman’s consent. The remainderman has a vested remainder interest that takes effect immediately when the deed is executed, even though the remainderman cannot take possession until the life estate holder dies.

Because the remainderman’s interest is vested and not subject to divestment, the life estate holder’s ability to deal with the property is restricted. If the life estate holder needs to sell the home to pay for assisted living or medical expenses, the remainderman must agree to the sale and sign the deed. If the remainderman refuses, the life estate holder cannot sell.

The life estate holder also owes a duty of maintenance to the remainderman. The life estate holder must pay property taxes, maintain insurance, and keep the property in reasonable repair. If the life estate holder neglects these obligations, the remainderman may have a legal claim for waste.

If the remainderman dies before the life estate holder, the remainderman’s interest passes through the remainderman’s estate (by will or intestacy). This can result in the life estate holder sharing ownership with the remainderman’s heirs, who may be people the life estate holder did not intend to benefit. Probate of the remainderman’s interest may be required.

Enhanced Life Estate Deed (Lady Bird Deed)

An enhanced life estate deed reserves to the life estate holder not only the right to live in the property but also the unrestricted power to sell, mortgage, lease, or revoke the transfer without the remainderman’s consent. The remainderman’s interest is a vested remainder subject to complete divestment, meaning the life estate holder can eliminate it at any time by selling the property, recording a new deed, or revoking the lady bird deed entirely.

The enhanced powers make the life estate holder’s control functionally identical to outright ownership. The remainderman has no practical authority over the property during the life estate holder’s lifetime and no ability to prevent any action the life estate holder takes.

Florida Bar Uniform Title Standards 6.10 and 6.11 formally recognize enhanced life estate deeds for both non-homestead and homestead property. Major title insurance underwriters in Florida insure transactions involving properly drafted enhanced life estate deeds.

Comparison

Feature	Traditional Life Estate	Enhanced Life Estate (Lady Bird)
Life estate holder can sell without remainderman’s consent	No	Yes
Life estate holder can mortgage without remainderman’s consent	No	Yes
Life estate holder can revoke the deed	No	Yes
Life estate holder can change remainderman	No	Yes
Remainderman’s interest	Vested, not subject to divestment	Vested, subject to complete divestment
Avoids probate at death	Yes	Yes
Stepped-up basis at death	Partial (life estate portion only)	Full
Gift tax triggered at execution	Possibly (remainder interest may be a completed gift)	No
Remainderman’s creditors can reach interest	Yes	Unlikely (interest can be divested at any time)
Medicaid estate recovery	Property may be subject to recovery	Property generally avoids recovery

Tax Differences

The tax treatment is the most significant practical distinction between the two types.

Under a traditional life estate deed, the creation of the remainder interest may constitute a completed gift of the remainder value for federal gift tax purposes. The value of the remainder interest is calculated using IRS actuarial tables based on the life estate holder’s age at the time of the transfer. The life estate holder may need to file a gift tax return (Form 709) and apply the gift against their lifetime exemption.

Under an enhanced life estate deed, no completed gift occurs because the life estate holder retains the power to revoke the transfer. No gift tax return is required, and the lifetime exemption is not affected.

The stepped-up basis treatment also differs. Under a traditional life estate, only the life estate portion of the property (the interest retained by the life estate holder) is included in the gross estate under IRC § 2036. The remainder interest, having been irrevocably transferred at execution, is not included. The beneficiary receives a stepped-up basis only on the life estate portion, resulting in a blended basis that may still produce capital gains tax liability on sale.

Under an enhanced life estate deed, the entire property is included in the life estate holder’s gross estate because the holder retained the power to revoke. The beneficiary receives a full stepped-up basis on the entire property, eliminating all capital gains on appreciation that occurred during the holder’s lifetime. The tax consequences of lady bird deeds are consistently more favorable than those of traditional life estate deeds.

Medicaid Differences

Both types of life estate deeds can play a role in Medicaid planning, but the enhanced version offers a significant advantage.

Under a traditional life estate deed, the property may be subject to Florida Medicaid estate recovery after the life estate holder’s death. Because the remainder interest vested immediately at execution, the state may argue that the life estate is part of the probate estate or otherwise recoverable.

Under an enhanced life estate deed, the property passes outside probate at death and is generally not subject to Medicaid estate recovery under current Florida law. The five-year look-back period applies to the remainder interest created by the deed. If the life estate holder executes the deed and applies for Medicaid within five years, the value of the remainder interest may trigger a penalty period. The penalty is calculated based on the actuarial value of the remainder interest, not the full property value.

Florida homestead property is an exempt asset for Medicaid eligibility purposes regardless of whether a life estate deed has been executed. The Medicaid advantage of an enhanced life estate deed relates specifically to estate recovery avoidance after death, not to initial eligibility.

Life Estate Holder’s Responsibilities

Regardless of which type of life estate deed is used, the life estate holder is responsible for maintaining the property during their lifetime. Obligations include paying property taxes, maintaining homeowner’s insurance, and keeping the property in reasonable condition. The life estate holder is also responsible for mortgage payments if the property is encumbered.

The homestead property tax exemption remains in place during the life estate holder’s lifetime for both types of deeds. The property is not reassessed until the life estate terminates at the holder’s death. At that point, the remainder beneficiary may apply for homestead if they establish permanent residence, but the Save Our Homes assessment cap resets.

When to Use a Traditional Life Estate Deed

There are very few situations where a traditional life estate deed is preferable to an enhanced life estate deed in Florida. A traditional life estate may be appropriate when the life estate holder specifically wants to restrict their own ability to sell or mortgage the property, such as when an elderly parent wants to ensure the property cannot be conveyed away under undue influence. In that narrow circumstance, the restriction on the life estate holder’s powers serves as a protective mechanism.

In virtually all other cases, an enhanced life estate deed provides the same probate avoidance benefit with superior tax treatment, greater flexibility, and better Medicaid planning results. Florida practitioners overwhelmingly recommend enhanced life estate deeds over traditional life estate deeds for estate planning purposes.

Requirements

Both types of life estate deeds must satisfy the standard Florida deed execution requirements. The deed must be in writing, signed by the grantor, witnessed by two individuals, and notarized. The deed must include the full legal description of the property and the parcel identification number. It must be recorded in the official records of the county where the property is located.

For enhanced life estate deeds, the reservation-of-powers clause is the most critical drafting element. The deed must expressly reserve to the life estate holder the power to sell, mortgage, lease, and revoke the transfer without the remainderman’s consent. Without this language, the deed will be construed as a traditional life estate deed, and the life estate holder will lose the ability to deal with the property independently.

If the property is homestead and the life estate holder is married, both spouses must sign the deed regardless of which type is used. This requirement comes from Article X, Section 4 of the Florida Constitution.