Florida end-of-life planning guide: probate, advance directives, and what families need to know

Florida has some of the most distinctive end-of-life planning laws in the United States — and some of the most consequential. Its homestead rules are unusually complex, protecting certain family members in ways that can override what a will says. Its probate process can be streamlined for smaller or older estates but becomes intricate when real property is involved. And the state's aggressive Medicaid estate recovery program is a planning factor that too many Florida families discover only after it's too late to do anything about it.

This guide covers what Florida residents specifically need to know when planning ahead or helping a family member navigate end-of-life decisions in the Sunshine State.

How Florida probate works

Probate in Florida is governed by the Florida Probate Code, found at Chapters 731 through 735 of the Florida Statutes. It is handled by the Circuit Court in the county where the deceased was domiciled at the time of death — Florida's circuit courts are the trial courts of general jurisdiction, and each of Florida's 67 counties has a circuit court that handles probate matters.

Florida offers two primary paths through probate, depending on the size and age of the estate:

Formal administration is the standard probate process in Florida. It involves filing a petition with the court, appointing a personal representative (Florida's term for an executor), notifying creditors, paying debts, and ultimately distributing assets to beneficiaries. The process is supervised by the court. For a contested estate, formal administration is the only option. Uncontested formal administrations in Florida typically take nine months to two years, though that range can extend significantly for larger or complicated estates.

Summary administration is a simplified alternative available in two situations under Florida Statutes §735.201: (1) the value of the entire estate subject to administration in Florida is $75,000 or less (after payment of creditors' claims), or (2) the decedent has been dead for more than two years. Summary administration does not require the appointment of a personal representative and is typically completed more quickly and at lower cost than formal administration.

Florida also recognizes Disposition of Personal Property Without Administration (F.S. §735.301) for very small estates where assets do not exceed the amount of exempt personal property and preferred funeral and administration charges.

For a thorough walkthrough of the probate process from beginning to end, see how probate works.

The Florida homestead — one of the state's most complex rules

Florida's homestead protection is among the strongest in the nation, and it operates in ways that can significantly affect estate planning. The rules have two distinct components: a creditor-protection function (which can shield a homestead property from most creditor claims during life and at death) and a descent-and-devise function (which controls who can inherit the homestead). It is the second component that most often surprises families.

Descent of homestead: Under Florida Statutes §732.4015 and the Florida Constitution, if the deceased was survived by a spouse or minor children, the homestead property cannot be freely devised in a will. Specifically:

• If there is a surviving spouse but no minor children, the surviving spouse receives a life estate in the homestead, with a vested remainder to the lineal descendants — unless the surviving spouse elects to take a one-half share of the property in fee simple instead.
• If there are minor children (regardless of whether the spouse is living), the homestead cannot be transferred at all to anyone other than the minor children during their minority.

This means that a Florida will which attempts to leave the homestead to someone other than these protected parties — say, a second spouse attempting to leave the home to children from a prior marriage — will fail as to the homestead. The constitutional protection overrides the will.

For people with blended families or non-traditional family structures, this is one of the most important reasons to consult a Florida estate planning attorney before finalizing any plan.

What makes a will valid in Florida

Florida law (F.S. §732.502) requires that a valid will be:

• In writing
• Signed by the testator at the end of the will (or signed by another person in the testator's presence and at their direction)
• Witnessed by two witnesses who are present when the testator signs, and who also sign the will in the presence of the testator and of each other

Holographic wills are not recognized in Florida. Unlike roughly half of U.S. states, Florida does not allow a handwritten, unwitnessed will. A document that meets all requirements for a holographic will in another state — handwritten and signed by the testator — is not valid in Florida if it lacks the required two witnesses.

Florida does permit self-proving wills: if the testator and witnesses sign before a notary and the notary includes the appropriate attestation, the will is self-proving (F.S. §732.503). This eliminates the need to track down witnesses during probate to verify their signatures — a significant practical benefit given how long after signing a will may be submitted for probate.

For a broader look at the full estate planning document picture, see the estate planning checklist.

Revocable living trusts in Florida

Revocable living trusts are exceptionally popular in Florida, and for good reason. Given the complexity of homestead rules, the length and cost of formal probate, and the desire to keep estate distributions private, many Florida residents — particularly retirees — use a revocable trust as the centerpiece of their estate plan.

A revocable trust is established during your lifetime, holds assets, and distributes them to beneficiaries after your death without court involvement. Assets properly titled in the trust's name bypass the probate process entirely.

Key advantages in Florida's context:

• Avoids probate on all assets properly titled in the trust
• Preserves privacy — probate is a public court record; trust distributions are not
• Speeds distribution — trust assets can transfer within weeks rather than months
• Addresses out-of-state property — Florida residents with real property in other states can use a trust to avoid ancillary probate proceedings in those states

One nuance specific to Florida: homestead property may be transferred into a revocable trust, but care is required to ensure the transfer does not inadvertently trigger homestead exemption issues or violate the descent rules. The mechanics of how Florida homestead interacts with trust ownership are one of the more technically demanding areas of Florida estate planning.

The revocable living trust guide explains how these trusts work generally. For Florida-specific homestead-and-trust planning, working with a Florida-licensed estate attorney is strongly recommended.

The elective share in Florida

Florida law protects surviving spouses from being disinherited. Under F.S. §732.2065, a surviving spouse is entitled to an elective share of 30% of the elective estate. The elective estate is broadly defined — it includes not only assets that pass through probate, but also revocable trust assets, payable-on-death accounts, life insurance proceeds payable to the estate, and certain other transfers made during the decedent's lifetime.

This 30% elective share right can be claimed even if the will leaves the surviving spouse nothing. It can also arise in blended family situations where the decedent's plan was designed to benefit only their children. Florida's elective share rules apply to marriages that were valid at the time of the decedent's death.

Advance directives in Florida

Florida uses two advance directive documents that are legally distinct — though they are often combined into a single form.

Florida Designation of Health Care Surrogate (F.S. §765.202) is the document that designates another person to make healthcare decisions on your behalf if you lose decision-making capacity. This is Florida's equivalent of what most states call a healthcare proxy or healthcare power of attorney. The document must be signed in the presence of two witnesses. The healthcare surrogate has authority to consent to or refuse treatment, access medical records, and make end-of-life decisions.

Florida Living Will (F.S. §765.301 et seq.) is a separate document — a written declaration of your own instructions regarding life-prolonging procedures in the event you have a terminal condition, an end-stage condition, or are in a persistent vegetative state. It operates independently of the healthcare surrogate designation, though many Florida attorneys combine both into a single advance directive document. The living will must also be signed in the presence of two witnesses.

The Florida Agency for Health Care Administration makes downloadable advance directive forms available, and many hospitals provide them. While the two documents can be combined, both functions should always be addressed.

For more on the distinction between these two types of documents, see advance directive vs. living will.

Florida POLST (FPOLST)

The Florida POLST — formally known as the Florida Physician Orders for Life-Sustaining Treatment (FPOLST) — is a physician-signed medical order that translates a patient's advance care preferences into specific medical instructions that must be followed by emergency responders and healthcare providers statewide.

The FPOLST is printed on bright yellow paper for immediate visual identification. It covers:

• Whether CPR should be attempted
• The level of medical intervention appropriate (comfort measures, limited interventions, or full treatment)
• Preferences about artificial nutrition and hydration

The FPOLST is intended for people who have serious illness, advanced frailty, or are near the end of life — not as general advance planning for healthy adults. The Florida POLST Paradigm Program coordinates education and implementation across the state.

Florida Durable Power of Attorney

Florida's Durable Power of Attorney for financial matters is governed by Part II of Chapter 709 of the Florida Statutes. A Florida durable POA must be:

• In writing
• Signed by the principal
• Witnessed by two witnesses
• Notarized

Florida requires a specific acknowledgment in the document and has particular requirements around when the POA becomes effective. Florida also requires that any agent under a durable POA sign an acknowledgment before exercising authority.

For more detail on how power of attorney fits into end-of-life planning, see power of attorney for end-of-life planning.

Florida pre-need guardian declaration

Florida offers a unique planning document called a Declaration of Pre-Need Guardian (F.S. §744.3045). This document, signed before any incapacity occurs, names your preferred guardian if a court later determines you need one. While the court is not strictly bound by the declaration, it gives significant weight to the named person's appointment. For Florida residents who want to ensure a specific person oversees their care rather than leaving it entirely to judicial discretion, this is a practical and underused tool.

Florida estate taxes and federal taxes

Florida has no state-level estate or inheritance tax. This is a meaningful planning advantage compared to states like New York, Oregon, or Massachusetts that impose their own estate taxes. Florida residents are only subject to the federal estate tax, which as of 2026 applies to estates above the federal unified credit amount (adjusted annually). For most Florida residents, federal estate tax is not a practical concern — but for those with large estates, federal planning remains important.

Medicaid estate recovery in Florida

Florida's Medicaid estate recovery program is one of the more aggressive in the country. Under F.S. §409.9101, the Florida Agency for Health Care Administration (AHCA) may file a claim against the probate estate of a deceased Medicaid recipient to recover costs for certain services — most significantly, nursing facility care and related services provided to a person aged 55 or older.

Florida's program recovers from the probate estate — meaning assets that pass through the court-supervised probate process. Assets that pass outside of probate — through a revocable trust, joint tenancy with right of survivorship, beneficiary designations, or other non-probate mechanisms — are generally not subject to recovery under Florida's current program.

This is one reason why Medicaid planning and estate planning in Florida must be considered together: strategies that avoid probate also tend to reduce the estate's exposure to AHCA recovery claims. Families where a parent or spouse is receiving or is likely to need long-term care should engage a Florida elder law attorney well before a Medicaid application is filed.

Key Florida agencies and contact information

• Florida Circuit Courts: Handle probate — find the circuit court in the county where the deceased was domiciled. Florida has 20 judicial circuits, each serving one or more counties.
• Florida Agency for Health Care Administration (AHCA): Administers Florida Medicaid and the estate recovery program. Website: ahca.myflorida.com
• Florida Bar — Lawyer Referral Service: Can help identify Florida-licensed estate planning and elder law attorneys.
• Florida POLST Paradigm Program: Information on the FPOLST form and provider education.
• Florida Department of Financial Services: Oversees insurance and funeral-related licensing.

What's different about Florida compared to other states

Several features distinguish Florida's end-of-life planning landscape:

Holographic wills are void. Unlike roughly half of U.S. states, Florida does not recognize handwritten, unwitnessed wills. This is an important reminder for anyone who has moved to Florida from a state that allows holographic wills.

Homestead rules are among the most complex in the nation. The constitutional homestead protection means that standard estate planning approaches may not work as expected when real property is involved — particularly in blended families.

No state estate or inheritance tax. Florida's tax-friendly approach is one reason it is a popular destination for retirees. The absence of a state estate tax is a genuine planning benefit.

Revocable trusts are the dominant planning vehicle. The combination of probate costs, homestead complexity, and lack of state estate tax makes trust-centered planning the norm rather than the exception for Florida residents with meaningful assets.

Medicaid estate recovery applies to the probate estate. Because Florida's recovery is limited to probate assets, non-probate planning strategies serve a dual function: they speed distributions to heirs while also reducing estate recovery exposure.

Frequently asked questions

Does Florida recognize a will made in another state?

Generally, yes. Florida will admit a will to probate if it was validly executed under the laws of the state where it was made or the state where the testator was domiciled at the time of execution (F.S. §732.502). However, a will that meets the requirements of another state but does not meet Florida's requirements — particularly a holographic will valid in, say, California — would need to satisfy the specific provisions of Florida law to be admitted in Florida probate. When moving to Florida, it is worth reviewing your existing estate planning documents with a Florida attorney.

What is the difference between a Florida healthcare surrogate and a living will?

A healthcare surrogate designation appoints another person to make medical decisions for you. A living will records your own written instructions about end-of-life treatment. They are legally separate documents in Florida, though they are often signed together. If you become incapacitated and your specific situation isn't addressed in your living will, your healthcare surrogate steps in to interpret and apply your known values and wishes.

Can Florida homestead property be left to anyone in a will?

Not always. If you are survived by a spouse or minor children, Florida's constitutional homestead provisions restrict how the property can be devised. Attempting to leave the homestead to someone other than the protected parties — or in a manner inconsistent with the homestead descent rules — will fail as to the homestead. This is one of the most important reasons to work with a Florida estate planning attorney, particularly in blended-family situations.

What is summary administration in Florida?

Summary administration is a simplified probate process available when the estate subject to administration in Florida is valued at $75,000 or less, or when the decedent has been dead for more than two years. It does not require the appointment of a personal representative and is faster and less expensive than formal administration. It is typically used for smaller estates or situations where formal administration was delayed.

Does a revocable trust protect assets from Florida Medicaid estate recovery?

In Florida, AHCA's estate recovery program reaches the probate estate — assets distributed through the court-supervised probate process. Assets that pass outside of probate, including assets held in a properly funded revocable trust, are generally not subject to AHCA recovery under current Florida law. However, Medicaid rules are complex and change frequently. Anyone with long-term care concerns should work with a Florida elder law attorney before drawing conclusions about any specific strategy.

What Passings Can Help With

Florida residents can use Passings to organize their end-of-life documents, record preferences for funeral and burial, and ensure that the people who will be responsible for their affairs can find what they need. The end-of-life planning guide walks through the full scope of decisions involved. Passings also connects families with Florida estate attorneys, funeral homes, and other providers during a difficult time.

This article provides general information and is not legal, financial, or medical advice. Florida statutes are subject to change — consult a Florida-licensed attorney for advice specific to your situation.

Disclaimer — For informational purposes only

This article is compiled from publicly available resources and is provided solely for general informational purposes. It does not constitute and should not be relied upon as legal, financial, tax, insurance, medical, psychological, or other professional advice. Passings is a planning and organizational platform, not a licensed advisory service, and no attorney-client, financial advisor-client, or other professional relationship is created by reading this content.

Laws, regulations, financial products, and professional standards vary by state and change over time. Passings makes no representations or warranties — express or implied — regarding the accuracy, completeness, timeliness, or suitability of any information contained herein. To the fullest extent permitted by applicable law, Passings disclaims all liability for any loss, damage, or harm arising from your use of or reliance on this content. Always consult a qualified, licensed professional — including an attorney, financial advisor, CPA, or licensed counselor — before making decisions specific to your situation.

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